P.N. Yadav, J.@mdashThis appeal is directed against the judgment and order dated 5-9-2000 passed by Sri Madhusudan Singh, Additional Sessions Judge, Kishanganj in Sessions Trial No. 17 of 1999 whereby and whereunder he found and held the appellant guilty and convicted him under Sections 366 and 376 of the Indian Penal Code (hereinafter referred to as the Code) and sentence him to undergo rigorous imprisonment for five years under the first count and to undergo rigorous imprisonment for seven years under the second count.
2. It would be relevant and convenient to reproduce in brief the facts of the case. The victim Jhunna Das, a minor girl (P.W. 8) lived with her parents at Purani Khagra, Kishanganj. She was a student of Class X at Kanya Madhya Vidyalaya, Dumaria, Kishanganj. At about 6 a.m. on 4-6-1998 she left her house for the school. She did not return her home till late evening. The members of her family then got anxious and they started making search for her. Despite hectic search the victim girl Jhunna Das could not be traced out. One Abdul Noman used to teach her as tutor. On account of his indecent activities and icereputation the parents of the victim girl asked Abdul Noman to stop teaching her on tuition basis. As he was removed and disengaged he got infuriated and enraged. He threatened that he would take away the victim Jhunna Das. Hence, the inmates of the house including informant Malka Das, elder sister of the victim suspected that Abdul Noman enticed away her.
3. Informant Malika Das (P.W. 3) submitted a written report (Ext. 2) to the Officer-in-Charge of Kishanganj Police Station on the basis of which a formal First Information Report (Ext. 3) was drawn up and Kishanganj P.S. Case No. 142/98 was registered under Sections 363, 365 and 366A of the Code. Investigation was taken up by P.W. 7 Narendra Sharma, Sub-Inspector of Police. In course of investigation, Jhunna Das (P.W. 8) returned her home though P.W. 7 stated that the victim Jhunna Das was recovered from the house of the appellant, however, there is no material on record to substantiate the claim of P.W. 7 that he had recovered the victim girl and arrested the appellant from the house of the latter. The victim (P.W. 8) returned to her house, narrated how she was abducted by the appellant and taken away by him in a car while she had reached near the Court on way to her school. She also stated to her sister (P.W. 3), brother Subhash Kumar Das (P.W. 5) as well as the police that Abdul Noman, Alimuddin, Idris and Abdul Hafiz were also sitting in the car, referred to above although they got off from the car after it covered son distance and the appellant took the victim to Katihar where he ravished her on 4th and 5th June, 1998. After she was released and left by the appellant at Katihar Railway Station she returned to her house. Her statement was also recorded u/s 164 Cr. P.C., the narratives of which were identical to that disclosed to the members of her family as well as the police. The victim was examined by the Doctor (Mrs.) Tapti Dhar Rai (P.W. 6) who estimated her age to be about 16 years.
4. After completing investigation, the Investigating Officer submitted charge-sheet against the appellant showing Abdul Naoman as not sent up for trial and finally the trial commenced after commitment. Aforesaid Abdul Naoman, Alimuddin, Idris and Abdul Hafiz were also summoned u/s 319 Cr. PC. but as the appellant had been in jail custody and the accused summoned u/s 319 Cr. PC. had not put in their appearance till then, their case was split up and the trial proceeded against the appellant alone.
5. The appellant was charged under Sections 366Aand 376 of the Code. He pleaded innocence. He did not enter into defence. From the trend of cross-examination of the prosecution witnesses, the statement of the appellant u/s 313 Cr. P.C. and the written statement put in on his behalf, the defence seemed to be that of total denial and false implication. It was contended that the parents of the victim Jhunna Das wanted to marry her with the appellant but as the latter did not agree and his marriage was already settled with another girl he had been falsely implicated.
6. In order to prove its case the prosecution examined P.W. 1 Rajendra Prasad Modi, P.W. 2 Shayamal Kumar Biswas, P.W. 4 Mahfooz Alam besides P.Ws. 3, 5, 6, 7 and 8 referred to above.
7. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on record into account, found and held the appellant guilty and convicted and sentenced him under Sections 366 and 376 of the Code, as stated above vide the impugned judgment and order of conviction and sentence though the appellant was charged under Sections 366A and 376 of the Code.
8. The appellant assailed the judgment and order of conviction and sentence passed against him on the ground that it was not based on law and facts and proper appreciation of evidence rather it was based on mere surmises and conjectures.
9. Now the only point for determination is whether the judgment and order impugned could be sustained and upheld on the basis of the materials available on record.
10. It is to be noted at the very cutset that in a case of abduction and rape, the most important witness happens to be the victim herself and in that view of the matter the evidence of the prosecutrix (P.W. 8) assumes important significance. She supported the prosecution case in its entirety by stating on oath that while at about 6.00 a.m. on 4-6-1998 she set out for her school and she reached near Court enroute to her school, the appellant got off from a Maruti Car standing there and he with a dagger in his hand caught hold of her and he forcibly made her sit in the car and the car sped away. P.W. 8 to her utter dismay and surprise found that Abdul Naoman, Alimuddin, Idris and Abdul Hafiz were already sitting in the car. She added that after the car covered certain distance Abdul Naoman and others named above got down from the car and only the appellant and the victim besides the driver remained in the car. It is in her evidence that the appellant threatened her that she and all the members of her family would be done away with if she raised any objection or made protest. The appellant tied her eyes with black cloth so that she might not witness which way she was travelling on the car. P.W. 8 stated that the car carrying her and the appellant reached Katihar in the evening. The appellant took her to the Railway Platform and from there to a lonely place by the side of a goods train and committed rape upon her. Next day i.e. on 5-6-1998 the appellant kept the victim with him and he did not leave her alone even for a moment and in the night he again ravished her. The victim stated that on 6-6-1998 two persons went to the appellant and told him that vigorous search was being made for the girl. Thereafter, he freed and left her at Katihar Railway Station platform and he went away somewhere else and thereafter, she returned to her house and narrated her sordid and awful tale to her brother and sister (P.Ws. 5 and 3 respectively). It is in the evidence of P.W. 8 that P.W. 3 informed the police regarding her arrival and thereafter, the police officer visited her house and recorded her statement and referred her to hospital where she was examined and treated by the Doctor (P.W. 6). She stated that her statement was also recorded by the Magistrate.
11. P.W. 3 Malika Das, the informant, supporting the prosecution version reiterated the facts stated in her written statement which was made the basis of the case. P.W. 3 and her brother P.W. 5 corroborated P.W. 8 in all material particulars by stating that when P.W. 8 returned home on 6-6-1998 she narrated how she was forcibly at the point of dagger abducted and taken to Katihar by the appellant and she was ravished there on the 4th and 5th June, 1998 and after she was freed on 6-6-1998 she came back to her house. P.Ws. 3 and 5 also stated that Abdul Naoman used to teach their sister (P.W. 8) as a tutor but as he started having greedy eyes on her and they suspected ill motive and design on his part, they removed him and asked him to stop teaching her as a result of which he got infuriated and threatened the entire family to be ruined.
12. The evidence of P.Ws. 3, 5 and 8 was quite consistent and corroborative. They were subjected to long cross-examination but despite that nothing was elicited in their cross-examination to demolish their veracity. On a careful consideration of the evidence of the prosecutrix taken as a whole it will transpire that the is the most competent witness and her evidence must be said to be above board. Certain minor inconsistency or even discrepancy is bound to occur in the evidence of a natural witness for, a witness while making his way. through labyrinth of long cross-examination makes some statement which is not necessarily true for fear that his evidence in regard to the main incident witnessed by him may not be accepted. However, in the instant case no material discrepancy or contradiction going to the root of the case occurred in the evidence of the prosecution witnesses.
13. P.W. 6 Dr. (Mrs.) Tapti Dhar Rai examined the victim girl on 6-6-1998 at about 7.40 p.m. She found auxiliary and public hair present, breast developed, hymen old ruptured. No spermatazoa was found. The victim had already taken bath and hence spermatazoa might not have been present at the time of her examination by the Doctor. The Doctor did not give definite opinion in regard to commission of rape. The report made by the Doctor is Ext. 2. The opinion of the Doctor that no sign of commission of rape was found cannot be accepted in view of the ocular and reliable evidence of the prosecutrix.
14. I.O. (P.W. 7) carried out investigation and after completion thereof he submitted charge-sheet. He inspected the place of occurrence and gave a vivid description of the same. It was in the evidence of the prosecutrix that blood and semen had fallen on her clothes and she had shown the same to the police officer. The I.O. did not seized the apparels of the victim having stain of blood and semen thereon. Again P.W. 7 claimed to have recovered the victim from the house of the appellant and prepared papers in respect thereof. No paper at all the in respect of search and recovery of the victim was brought on record. Such document was also conspicuous by its absence from the case diary. The statement of the I.O. that he had recovered the victim from the house of the appellant cannot be accepted. However, the ends of justice cannot be permitted to be frustrated on account of laches, negligence and apathy on the part of the I.O. in not seizing the wearing apparels of the victim and making wrong statement that he had recovered the girl.
15. From the evidence of P.Ws. 3 and 5, it will transpire that the victim girl has in all five brothers and sisters and she was the youngest of all. P.W. 5 was the eldest among the five brothers and sisters. He was aged about 25 years on the date of his deposition i.e. on 3-5-1999. It is in the evidence of P.W. 3 that there is difference of three years in the dates of birth of her sisters and brothers. The victim P.W. 8 stated her age to be 14 years before the Magistrate who recorded her statement u/s 164 Cr. P.C., on 16-6-1998 and she, while giving her evidence on 7-12-1999 before the trial Court, said that she was aged 15 years. The Doctor (P.W. 6) after examining her determined her age at about 16 years on 6-6-1998. In the facts and circumstances and also keeping in view the opinion of the Doctor, it is to be held that the victim girl must be minor one aged below 16 years at the time of occurrence.
16. The victim girl was abducted from her lawful guardian and she was taken to different places in the district of Katihar and there she was ravished on two consecutive days. The facts and circumstances were eloquent of the fact that the appellant kidnapped the prosecutrix with an intention to marry her against her will or in order that she might be forced to illicit intercourse. Vital ingredients for upholding conviction u/s 366A of the Code stand well proved.
17. The prosecutrix belongs to tradition bound non-permissive society. She must be expected to be extremely reluctant to appear in Court and to state falsely that she was ravished for fear that it was to reflect upon her chastity and she might be looked down upon by the members of the society. She will be most hesitant and reluctant to make false statement regarding commission of sexual assault upon her before the police as well as in Court at the instance of her family members. Though the prosecutrix may be said to be interested in the outcome of the charge levelled by her, on a careful and cautious scrutiny of her entire statement she seems to be worthy of credence and her evidence of infliction of sexual assault on her by the appellant inspires confidence. There should be no hesitation in accepting the testimony and acting upon the same without looking for any corroboration. However, in the instant case, the prosecutrix stands corroborated by her brother and sister (P.Ws. 5 and 3).
18. A few words, on defence version it was contended that the vicim''s parents had offered a proposal for her marriage with the appellant which was turned down by his parents and on that account the members of the family of the victim got infuriated and they, with a view to put undue pressure on the appellant thought out a plan to implicate him and in pursuance thereof the instant case was concocted. The continuation is non-meritous and the same can not be accepted. As already observed, the victim or the members of her family cannot be expected to make a cock and bull story which would be violative of chastity of a young and un-married girl. It is a matter of common experience that no one dares to concoct a case to imlicate a man with allegation that he ravished a family member, particularly an unmarried young girl. The defence set up by the appellant seems to be far from plausible and the same cannot be accepted.
19. The prosecutrix can, by no stretch of imagination, be said to be a consenting party for no iota of evidence even by way of putting suggestion was brought on records to give rise to an inference that she had consented to have sex with the appellant. Though, of corse, the settled principle of law is that the onus is on the prosecution to prove its case and it cannot gain strength from the conduct of accused or absence of some explanation given by accused or from his absence, there is nothing on record on the basis of which the evidence of the prosecutrix on the point of commission of rape can be discarded as not being worthy of credence nor can it be said that she was a consenting party. The fact that the victim did not raise alarm either in the car or even at Katihar Railway Station platform cannot lead one to conclude that she was a consenting party. She was abducted at dagger point, her mouth was shut, her eyes were tied with clothes, the appellant always threatened her with dire consequences and he did not leave her even for a moment at Katihar. In the circumstances, the victim could not have raised alarm.
20. It was also contended that the parents of the victim, though alive, were to examined by the prosecution and their non-examination must be interpreted to have lent support to the defence version that they had approached the appellant for his marriage with the victim and their proposal was turned down by the appellant and hence the instant case was cookad up. There was no merit and force in the contention. Non-examination of the parents is of no consequence nor can it give rise to an inference in favour of the imaginary defence version.
21. It may be observed that crime against the woman in general and rape in particular has been increasing day-by-day. The commission of rape is violative of human dignity of the victims of sexual assault. Rape causes psychological as well as physical harm. It is not merely a physical assault rather it is very often destructive of the whole personality of the victim. The Courts are, therefore, expected to deal with such case with utmost sensitivity and responsibility and to examine the broader probabilities of the case ignoring minor contradictions or discrepancies in the statements of the victim. If the evidence of the victim inspires confidence, it must be relied upon without seeking corroboration of her statement.
22. The test prescribed by the principles of law stands satisfied in the present case. The statement of the prosecutrix being above board must be accepted and acted upon even without corroboration in accordance with the ratio decidendi of the case of Mahesh Karmali alias Ramesh Karmali v. State of Bihar 2000 (3) B.B.C.J. 104.
23. However, the learned Court below convicted the appellant u/s 366 of the Code though the charge was framed u/s 366A of the Code and the materials on record also established the charges u/s 366A of the Code. Hence, the conviction of the appellant u/s 366 of the Code is converted into one u/s 366A of the Code.
24. In view of what has been stated and observed in the preceding paragraphs, it is to be held that the prosecution established the charge under Sections 366A and 376 of the Code levelled against the appellant beyond reasonable doubt. The learned trial Court rightly found and held the appellant guilty and convicted him. The sentence awarded to the appellant too do not seem to be excessive or exorbitant warranting interference by this Court.
25. For the reasons stated above, it is to be held that there is no merit in the appeal which must fail. Accordingly with the aforesaid modification in the conviction the appeal is dismissed. The impugned judgment and order of conviction and sentence passed against the appellant stands maintained and confirmed.
