Surendra Vikram Singh Rathore, J.�Under challenge in the instant Criminal appeal is the judgment and order dated 23.12.2010 passed by learned Session Judge, District Barabanki in Session Trial No. 659 of 2008 arising out of Case Crime No. 335 of 2007, under section 376(2)(g), IPC, Police Station Safdarjung, District Barabanki whereby both the appellants namely Pradeep Rawat and Jagroop have been convicted for the offence under section 376(2)(g), IPC and were sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs. 10,000/-, with default stipulation of 2 years'' additional simple imprisonment. According to the version of the FIR, the case of the prosecution was that the victim was the minor daughter of the complainant Ram Aadhar and the FIR of this case was lodged on 16.5.2007 at 00:45 hours, alleging therein that on 5.5.2007 the complainant had gone with his wife and son to village Pasinpurwa and her minor daughter was alone in the house. The appellants Pradeep Rawat and Jagroop at about 7.00 p.m. forcibly took her from her house and after closing her mouth she was gang raped by the appellants. Anyhow the victim managed to raise alarm then Smt. Molahi wife of Tulsi, Jagjeevan son of Sukai and other persons ran towards the place of occurrence then the accused persons ran away from there. When the complainant came back to his house then his daughter narrated the entire story to him and accordingly FIR was lodged. After registration of the case the victim was referred for her medical examination. She was medically examined by the Dr. Sultana Aziz, Senior Consultant, District Women Hospital, Barabanki, on 17.5.2007 at 12.35 p.m. In her examination her teeths were 7 + 7/7 + 7, breasts were well developed and axillary and pubic hairs were well developed but no mark of injury was seen on her private part. Hymen was old torn healed tags of hymen were present. Vagina admitted two fingers easily. Vaginal smear slides were prepared and sent to pathological test for ascertaining the presence of spermatozoa. For determination of her age, she was referred for X-ray. On the basis of the aforesaid tests, by means of supplementary report dated 22.5.2007, no definite opinion about rape was given and her radiological age was reported to be between 17-18 years. The Investigating Officer inspected the place of occurrence on 16.5.2007 and prepared its site plan. The statement of the victim under section 164 Cr.P.C., was recorded on 25.5.2007 and after concluding the investigation charge-sheet was filed against both the appellants.
2. The case of the defence was that they have been falsely implicated in this case. The appellants Pradeep Rawat has stated that he had given Rs. 5000/- to the complainant about one month prior to the incident and he saved this amount by working in the village as a labour and the same was given by him to the complainant. The case of the appellants Jagroop was that Pradeep is his cousin through village relations and not because of blood relationship. He has stated that Pradeep is married.
3. In order to prove it case, the prosecution has examined PW-1, the complainant, Ram Aadhar, PW-2 the victim, PW-3 Smt. Molhi, PW-4 Dr. Om Prakash who has prepared the X-ray reports, PW-5 Constable Arjun Prasad Chaudhary who has prepared the chik report and G.D. of this case, PW-6 Dr. Sultana Aziz, who has medically examined the victim and has also prepared supplementary report, PW-7 S.I. Devi Saran Maurya, the Investigating Officer of this case.
4. In defence no evidence was adduced on behalf of the appellants. After appreciating the evidence on record the Trial Court has convicted the appellants as above, hence the instant appeal.
5. Submission of the learned Counsel for the appellants was that in this case the FIR has been lodged with delay and according to the medical examination the victim was found to be habitual to sexual intercourse and they have been falsely implicated in this case. In the alternative it has also been argued that the victim was a consenting party, when this incident was witnessed by the other persons of the village then they have been falsely implicated. It has further been submitted that there are several contradictions in the evidence of the victim and PW-3 Smt. Molahi which makes her testimony unreliable.
6. It has also been argued by the learned Counsel for the appellants that in the medical examination report the victim on the basis of two fingers test, was found to be habitual to sexual intercourse.
7. Learned Additional Government Advocate has stated that in this case the victim PW-3 and the complainant are absolutely illiterate and they have put in their thumb impressions on their statements. So the evidence of these rustic witnesses has to be considered, keeping in view the fact that they are absolutely illiterate. Minor contradictions in their evidence are bound to occur. It has further been submitted that not even a single contradiction was put to the Investigating Officer during his cross-examination as required under law. It has further been submitted that the Trial Court has considered all the aspect of the matter and was of the view that the evidence of the victim was wholly reliable and has rightly convicted the appellants. The judgment of the Trial Court needs no interference.
8. The first point to be considered in this case is the delay in the FIR. The incident of this case is alleged to have taken place on 5.5.2007 and the FIR of this case was lodged on 16.5.2007 at 00:45 hours. Though in the FIR it was mentioned that the complainant came back in the morning then he got the information. On the point of delay in the FIR, the complainant has specifically stated in his evidence that he came back to his house after about 10 days of the occurrence then he got the information. He got the FIR scribed by one Anil Kumar Verma and submitted the same at the police station. He has stated that the FIR was lodged in the midnight at 12:00 hours. He has further stated that before this incident the victim was married but her Gauna ceremony had not taken place. PW-2 victim has stated that her father came back to his house at about 11.00 a.m. He went to the police station during day time. He has further stated that the FIR was scribed by Anil Kumar Verma who at the relevant time, was village pradhan. It is pertinent to mention here that no suggestion was put to the complainant that the appellant Pradeep Rawat had given Rs. 5000/- to the complainant. In her cross-examination PW-2, the victim has also stated that her parents came back after about 10 days of the incident then she narrated the entire story to them. Therefore, by the evidence of the witnesses it is established that the parents of the victim were not present in the village. So it was very natural that the victim, before taking any further action, would have waited for her parents to come and only after their arrival FIR was lodged. Such conduct cannot be made basis to discard the entire prosecution case. It is a case of gang rape and in such nature of cases different approach has to be adopted on the point of delay in the FIR. Once the FIR is lodged the incident comes to the notice of all the persons and the victim along with her family has to suffer a great stigma which remains attached with her throughout her life. This is the reason why a large number of such cases are not even reported to the police and the family of the victim keeps silence to save the prestige of the victim and her family. In this case victim was a married girl and her gauna has yet to take place. So neither she nor her grand mother were in a position to take a decision to lodge FIR without informing the parents of the victim.
9. The incident of this case has v. taken place on 5.5.2007 while the FIR of this case was lodged on 16.5.2007. So there is a delay of about 10 days. Mere delay in FIR, by itself, cannot be a ground to discard the entire prosecution case but where the delay remains unexplained or unsatisfactory explanation is furnished even then the same cannot be a basis for discarding the entire prosecution case on this score alone but definitely a duty is cast upon the Court to scrutinize the prosecution evidence with extra care and caution.
10. Law is settled on the point that a prompt F.I.R. lends credence to the genuineness of the prosecution story and a delayed report may adversely affect the credibility of the prosecution case provided the delay has not been explained.
11. Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of
"15. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the Court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory.
In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand, 2001 (43) ACC 200 (SC) wherein a three-Judge Bench of Hon''ble Apex Court has expressed thus:- "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
In Ramdas and others v. State of Maharashtra, 2007 (57) ACC 471 (SC) : 2007 (49) AIC 418 Hon''ble Apex Court has observed that mere delay in lodging the First Information Report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the Court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the Court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the Court has to consider whether the delay in lodging the report adversely affects the case of the prosecution.
Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Om Prakash v. State of Haryana, 2014 (87) ACC 914 (SC) : 2014 (144) AIC 80 and also in the case of State of Rajasthan v. Roshan Khan 2014 (85) ACC 339 (SC) : 2014 (135) AIC 248.
Since it is a case of rape and different approach has to be adopted in the cases of delay in F.I.R. Hon''ble Apex Court in the case of
"6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned Counsel for the appellant is right that the High Court has lost sight of this vital distinction."
In another case of
"In India if the prosecutrix happened to be a married person, she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly, does not raise the question that the complaint was false. The reluctance to go to the police is because of society''s attitude towards such women. It casts doubt and shame upon her rather than comfort and sympathy. Therefore, the delay in lodging complaint in such cases does not necessarily indicate that her version is false."
12. So in the instant case, this Court is of the considered view that simply on the ground of delay in the FIR the entire prosecution story cannot be thrown out.
13. Submission of the learned Counsel for the appellants was that the victim was a consenting party but at no point of time no such suggestion was given to the victim nor there is anything in the statement of the victim which gives rise to the inference that she was a consenting party.
14. It is a case of gang rape hence section 114-A of the Indian Evidence Act comes into play which reads as under:-
"114-A. Presumption as to absence of consent in certain prosecutions for rape--In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."
15. Hon''ble Apex Court in the case of
"The Trial Court has thoroughly appreciated the facts of the case and come to the conclusion that in view of the provisions of section 114-A of the Indian Evidence Act, 1872, there is a presumption as to absence of consent in case of gang rape and it will be presumed that the prosecutrix did not give consent, as this presumption is based on the reasoning that nobody can be a consenting party to several persons simultaneously. Thus consent is not possible in the case of gang rape."
16. Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of
".........As we have already noticed, the prosecutrix (PW-2) has deposed categorically that all the six persons had raped her without her consent and forcibly. Section 114-A of the Indian Evidence Act, 1872, clearly provides that in a prosecution for rape under Clause (g) of sub-section (2) of section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Since the prosecutrix (PW-2) has categorically stated that sexual intercourse was committed by the accused without her consent and forcibly, the Court has to draw the presumption that she did not give consent to the sexual intercourse committed on her by the accused persons. The defence has not led any evidence to rebut this presumption. In our opinion, the High Court could not have, therefore, held that there were circumstances to show that PW-2 had gone on her own and on this ground acquitted the respondents."
17. Keeping in view the provision of section 114-A of the Indian Evidence Act the first point to be determined is whether the victim has been gang raped or not. The victim in her evidence has made specific allegation that the appellants after gagging her mouth with a piece of cloth dragged her to the field and she was grounded on "Pataura" (dried crop). Appellant Jagroop caught hold of her hands and appellant Pradeep Rawat after lifting her Petticoat committed rape with her. She has specifically stated that she could not cry as her mouth was gagged and during this incident her grand mother Molahi reached there then the appellants ran away from there. It has come in the evidence of Molahi, that she is the grand mother of the victim and was residing in her old house and the victim was residing in a different house. The victim has also proved her statement recorded under section 164 Cr.P.C. During investigation the victim has made similar allegation in her statement under section 161 Cr.P.C. Victim has also furnished an explanation as to why she could not accompany her parents and the other family members and she has stated that she could not go to attend the marriage because there were several catties and she had to take care of those catties. She has specifically stated that neither the appellant Pradeep Rawat used to visit her house nor there was any enmity of the appellants with her. She has stated that when she was forcibly taken by the appellant, at that time she was inside her house and was going to lit the lamp. Both the appellants trespassed into her house. There is no courtyard in the house and there is only one room having roof of a thatch. This witness has also denied the defence suggestion that appellant Pradeep Rawat had given Rs. 5,000/- as loan to her father and when the said money was demanded back then he has been falsely implicated in this case. She has also admitted that before the incident, her marriage was solemnized but Gauna had not taken place. She has also stated that after the incident nobody was sent to call her father as there was no family member present in the house. PW-3 Molahi has also supported the prosecution story and she has stated that at about 7.00 p.m. she asked the victim to lit the lamp thereafter she had gone to her old house and after about 5-10 minutes she came back then she found that lamp was not burning, then she called the victim who was not present in the house. She heard the noise of the victim from the fields of Samar Singh. She ran towards the field of Samar Singh and saw that Pradeep Rawat and Jagroop were running away and victim came to her and told her that Pradeep Rawat has raped her and Jagroop was holding her hands and her mouth was gagged with a piece of cloth. She has further stated that the FIR was lodged after the arrival of the father of the victim.
18. Submission of the learned Counsel for the appellants, on the basis of the evidence of PW-3, Molahi, was that she had seen the victim engaged in sexual intercourse with the appellant she raised alarm and it was virtually a consensual sexual act. It has further been submitted that only Pradeep is alleged to have committed rape with her and only allegation against the appellant Jagroop was that he was holding the hands of the victim at that time. This submission of the learned Counsel for the appellants has absolutely no legs to stand, keeping in view the Explanation 1 of section 376(2)(g), IPC which read as under:--
Explanation-1
"Where a woman is raped by one or more in group of persons acting in furtherance of their common intention each of the persons, shall be deemed to have committed gang rape within the meaning of this sub-section."
19. In the case of
"In other words this provision (376(2)(g), IPC) embodies a principal of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing, marking out of a certain measure of jointness in the commission of offence."
Keeping in view the explanation, there cannot be any dispute that the appellant Jagroop also shared a common intention. Both the appellants forcibly took the victim from her house to the field where one of them raped her and the other was holding her hands so their common intention stands established by the manner in which the incident has taken place. So the act of the other accused also falls within the purview of gang rape.
20. Next submission of the learned Counsel for the appellants was that in this case absolutely no injury was found on the body of the victim which falsifies the allegation of gang rape. There is no dispute to the fact situation that in this case the victim was medically examined after about 11 days of the incident. Mere absence of injury on the body of the victim cannot be made basis to infer that it was a consensual sexual act. Absence of injuries may be the result of desperate surrender. In this case the mouth of the victim was gagged with cloth and her hands were held by the other accused and during the incident the grand mother of the victim reached there and appellants have to run away from there. So in this background the absence of injury could not be fatal in the peculiar facts of this case. What would be effect of absence of injury in a case of rape has been considered by the Hon''ble Apex Court. In the case of
"11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in
12. As rightly contended by learned Counsel for the appellants a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar''s case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal then the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the Court finds it difficult to accept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial."
21. So far as the probability of the defence case is concerned it is unbelievable that any father would lodge a false FIR that too involving her married daughter, particularly when her gauna ceremony had not taken place because such allegation may ruin matrimonial life of his daughter. A suggestion was also given on behalf of defence that simply to get the money from the Government this false case has been lodged. It is really strange that the case of the defence was that PW-1 has borrowed Rs. 5000/- from appellant Pradeep Rawat and when he demanded back his money then he has been falsely implicated in this case. But it is really strange that in the cross-examination not even a suggestion to this effect was given to this witness (complainant). Such suggestion was given to PW-2, the victim, who has denied it and not even a single witness in support of such defence story could be produced on behalf of the appellants. So the defence taken by the appellants, was not the least probable. The evidence of the victim is wholly reliable and finds full corroboration from the evidence of PW-3.
22. Learned Counsel for the appellants has also stressed that no spermatozoa was found in the pathological test. It by itself, in the peculiar facts of this case, cannot be made a ground to discard the entire testimony of the witness. In the instant case it is established by the evidence of the victim that by the grand mother of the victim reached the place of occurrence. At that time the appellant Pradeep Rawat was committing rape with her. So ejaculation might not have taken place by that time. Hence absence of spermatozoa would not be of any importance. It has nowhere come in evidence that the such act was completed by ejaculation. To constitute the offence of rape mere penetration is sufficient.
23. On this point the Honljle Apex Court in the case of
"It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of details and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix."
24. Learned Counsel for the appellants has also drawn the attention of the Court towards some minor contradictions in the evidence of the witnesses. Only two witnesses of fact i.e. PW-2 the victim and PW-3 Molahi have been examined and both of them are absolutely illiterate and rustic ladies. It is settled principle of appreciation of evidence that the evidence of a witness has to be appreciated keeping in view the ground realities. The exact reproduction of the incident in exact words cannot be expected from such rustic witnesses because, being illiterate, they are short of their vocabulary to express their observations in exact words as may be expected from an educated person.
25. I would like to quote the pronouncement of Hon''ble Apex Court''s judgment in the case of
"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."
This point was also considered by Hon''ble the Apex Court in its earlier judgment in the case of
"We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle."
Learned Counsel for the appellants has laid great stress on the point that the victim was a girl of easy virtues as she was found habitual to sexual intercourse.
26. The Hon''ble Supreme Court in
"11. At this juncture, we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence Counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under section 376 I.P.C. We would like to state with all emphasis that such factors are wholly alien to the very scope and object of section 376 and can never serve either as mitigating or extenuating circumstances for imposing the sub-minimum sentence with the aid of the proviso to section 376(2) of the I.P.C. In fact, we have expressed our views in the judgment itself stating "No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment."
27. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when one likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most the officer called upon to evaluate her evidence would be required to administer caution up to himself before accepting her evidence.
28. Reference may be made to the pronouncement of Hon''ble Apex Court in the case of
29. The Hon''ble Supreme Court in another case
"Courts should not make observations that prosecutrix is a loose moral character and further expected from the Court to use self restraint"
The Supreme Court further observed as under--
"Even if the prosecutrix has been promiscuous in a sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone or everyone." This point has been considered by the Hon''ble Apex Court in the case of
"Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of ''loose moral character'' can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated."
Therefore, simply because the doctor reported that her vagina admitted two fingers easily, it would not be sufficient ground to discard her otherwise reliable testimony.
Hon''ble Apex Court in the recent judgment in the case of
30. This Court is of the considered view that contradictions in this case have absolutely no value as law is settled on the point that each and every contradiction is not material unless and until it goes to the root of the case and in the instant case no such contradiction in the evidence of the victim could be brought to the notice of the Court which makes her evidence improbable, unreliable or untrustworthy. A rustic victim of gang rape has narrated the story in her own words. It is unbelievable that such a lady would falsely implicate any person, keeping at stake her own married life. Her evidence falls within the purview of wholly reliable.
31. In view of the discussion made above, this Court is of the considered view that this appeal has no force deserves to be dismissed and is hereby dismissed. The appellants are already in jail. They shall be released only after serving out the sentence imposed by the Trial Court. Office is directed to communicate this order to the Court concerned for compliance and also sent back the lower Court record forthwith.
