A.P. Shrivastava, J.@mdashThis appeal has preferred by the appellant u/s 374 of Cr.PC against the judgment of conviction and sentence, 7-6-2000 passed by IVth Additional Sessions Judge, Morena (M.P.) in Sessions Trial No. 220/96 by which the appellant has been convicted u/s 376 of IPC and sentenced to undergo Rigorous Imprisonment for seven years with a fine of Rs. 3,000/- with default stipulation.
2. In nutshell, the story of the prosecution is that on 27-5-96 at about 8 p.m. at Village Hamirpura, prosecutrix (P.W. 5) went to bring vegetable from her uncle Tunderam and while she was returning to home, on the way near the well, appellant met her, threw her on the ground and committed sexual intercourse with her. During the commission of act, one hand was put by the appellant on her mouth, therefore, she could not cry. After the incident, prosecutrix (P.W. 5) came to her house and informed the incident to her father Banwari (P.W. 1) and Jiji (mother) Bhagwan Devi (P.W. 6). On the same night at about 11 p.m., she along with her parents went to the police station and lodged the report which is Exh. P-7. Thereafter, she was sent for medical examination. After completion of investigation, charge-sheet was filed before the Competent Court. After conclusion of trial, the appellant convicted and sentenced accordingly as stated in para one of this judgment.
3. Learned Counsel for the appellant challenged the conviction of the appellant on the ground that there is no eye-witness of the incident. Secondly, the age of the prosecutrix (P.W. 5) is above 16 years and the prosecution has not proved that the act of sexual intercourse was done against her consent or will. It is further submitted that the appellant has falsely been implicated, the material witness Tunderam was not examined and the incident took place in the dark night.
4. Prosecutrix examined as P.W. 5. In her statement, she deposed that the incident took place in the night at about 8 p.m. at Village Hamirpura. She had gone for taking vegetable from his uncle Tunderam and while she was returning to home, appellant met her, threw her on the ground, and committed sexual intercourse with her and left her after 15 minutes. When she returned to her house, she informed the incident to her Jiji (mother) Bhagwan Devi (P.W. 6). Then, at about 10-11 in the night, she went to the police station alongwith her father and lodged the report at the police station which is Exh. P-7. On the next day morning, she was examined by lady doctor.
5. Bhagwan Devi (P.W. 6) corroborated the same version as narrated by the prosecutrix (P.W. 5). She stated that her daughter (prosecutrix) informed that appellant committed sexual intercourse with her. Then, she went to the police station along with her daughter, her husband Banwari (P.W. 1) and Chowkidar of the village for lodging the report.
6. Banwari (P.W. 1) who is father of the prosecutrix, corroborated the testimony of the prosecutrix (P.W. 5) and Bhagwan Devi (P.W. 6). He affirmed that complainant (prosecutrix) informed him about the act committed by the appellant with her.
7. Asstt. Sub Inspector B.S. Yadav (P.W. 7) also corroborated that the First Information Report (Exh. P-7) was written by him as informed by the prosecutrix (P.W. 5) and Crime No. 34/96 was registered against the appellant/accused at Police Station, Mahua and on the next day, she was sent for medical examination.
8. Dr. Chandra (P.W. 3) on 28-5-96 examined the prosecutrix (P.W. 5). The report is Exh. P-4. For confirmation of the age of the prosecutrix, X-ray was advised. As per doctor, there was no external or internal injury found on the person of the prosecutrix. According to doctor, her axillary and pubic hair were well developed, her hymen was ruptured. The undergarments and slides of vaginal smear were prepared and then sent for chemical examination.
9. Dr. Yogendra Singh (P.W. 2) on 28-5-96 conducted X-ray of the prosecutrix (P.W. 5) for determining her age. As per report (Exh. P-1), her age was found to be 14 to 15 years. In his cross-examination, doctor admits that there may a difference of six months in the age of the prosecutrix on either side. Prosecutrix stated in her deposition sheet that her age is 19 years on the date of examination, i.e., on 2-7-97. Except medical evidence, no other proof was produced by the prosecution regarding the age of the prosecutrix. But as per. ossification test and keeping in view the margin of two years on either side, it is found that the learned Trial Court has rightly found the age of prosecutrix is above 15 years.
10. Regarding the submission made by learned Counsel for the appellant that there is no eye-witness of the incident. The offence like sexual assault are generally committed in utmost secrecy and it is seldom witnesses are found to be present at the time of occurrence of the incident. From the testimony of the prosecutrix (P.W. 5), it is nowhere stated that anybody was present at the time of occurrence. The prosecutrix stated that after committing act by the appellant, she came to her house and then she immediately narrated the incident to her mother and father.
11. Counsel for the appellant much stressed on the point that this in a case of consent because she did not cry during the commission of act. She is an young girl. She may resist the act of the appellant while committing rape. She could not identify the appellant due to dark night. Regarding the identification of the appellant in the dark night, arguments on this count is not acceptable because in the First Information Report (Exh. P-7), the name of the appellant has been mentioned and he is the neighbour of the prosecutrix. Therefore, it cannot be said that she could not identify even at the time of night when the incident took place. It is submitted that there is a chance of false implication against the appellant because on the same night, a report was lodged by the appellant side at the police station bearing Crime No. 35/96. Learned Counsel for the appellant made submission that it is a case of either consent or false implication.
12. Counsel for the respondent submits that in this case, the incident took place at 8 p.m. and report was lodged at the police station in the same night at about 11 p.m., while in the case which was reported by appellant side, the incident took place at about 9 p.m. and the report was lodged at about 12 p.m. bearing Crime No. 35/96, subsequent to Crime No. 34/96. The incident for which defence was relying, happened subsequent to this incident. This will not affect the prosecution case and the chances of false implication were also ruled out.
13. Counsel for the appellant relied on Randhir Singh v. State of M.P. 1979 (II) MPWN 82, in which, it is held that prosecution witnesses failed to give true and correct account of the incident, told lies and attempted to build up a false claim. Prosecution not relied on. Similarly, on the point of solitary statement of prosecutrix, he relied on Haratlal v. State of M.P. 1986 (I) MPWN 73 in such case, the testimony cannot be believed in absence of corroboration. Regarding inconsistency in the medical evidence and the testimony of the prosecutrix, learned Counsel for the appellant also relied on Badshah Klian v. State of M.P. 1996 (I) MPJR SN 19 and
14. The above citations lay down the general principles regarding the reliability of the statements of the prosecutrix and when it requires corroboration and in case if the testimony of the witnesses found to be unreliable, Court may discard the testimony of the prosecution evidence. In this case, the report was lodged promptly by the prosecutrix after the incident and soon after the incident, the incident was narrated by the prosecutrix to her mother and father at the first available time and the story which was written in the First Information Report (Exh. P-7) got fully corroborated to the testimony of the prosecutrix (P.W. 5). The testimony of prosecutrix (P.W. 5) further corroborated by her parents, Banwari (P.W. 1) and Bhagwan Devi (P.W. 6). The defence could not challenge the testimony of the prosecutrix that no rape was committed and if it was committed, it was with the consent of the prosecutrix as already discussed above. The report which was lodged by the appellant-party could not get any assistance, to indicate that she was falsely implicated by the appellant.
15. Regarding false implication, in the case of Om Prakash v. State of Uttar Pradesh AIR 2006 SCW 2814, the Apex Court observed that in a case of rape, when there was no apparent reason for victim, a married woman to falsely implicate accused after scatting her own prestige and honour, plea of false implication not tenable.
16. In this case, the incident took place when the prosecutrix was returning from his uncle''s house. Appellant met her on the way near the well, threw her on the ground and committed sexual assault. At the time of commission of act, the chances of resistance or cry for help depends on various factors. In this case, it is stated by the prosecutrix that the appellant put his hand on her mouth and after throwing her on the ground, she was overpowered and the appellant committed sexual iniercourse with her. Therefore, in such circumstances, if no resistance is offered, it does not amount that the act was committed with the consent.
17. In this case, the testimony of the prosecutrix is corroborated by her parents and the report was lodged promptly to be ruled out any chances of false implication. In this regard, we can rely on State of Rajasthan v. Biram Lal reported in 2005 Cr.LJ 2561 .
18. In the case of
Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
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 stained 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.
19. If the statement of prosecutrix is reliable and of sterling worth, then a conviction for the offence of rape can be sustained solely on her testimony without any corroboration. In this case, the grounds which were argued, were not convincing to disbelieve the testimony of the victim.
20. In view of the above discussion, it appears that the learned Trial Court has rightly convicted the appellant. Therefore, the conviction as recorded by learned Trial Court is affirmed. The sentence as awarded by learned Trial Court is appropriate and does not require any interference. Thus, both conviction and sentence as recorded by learned Trial Court is hereby affirmed. Bail bond of the appellant shall stand cancelled. He is further directed to surrender before the Trial Court lo serve out the remaining part of sentence.
The appeal is dismissed accordingly.
