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Tuesday, October 28, 2014

Sec.376 I.P.C.-Village Girl - Rape - delay in FIR - reason - panchayat - explanation given is not an after thought as it has got roots in the FIR itself - mere discrepancy in date of offence -does not collapse the prosecution case - Apex court dismissed the appeal = CRIMINAL APPEAL NO. 1114 of 2011 MUKESH ……APPELLANT VERSUS STATE OF CHHATTISGARH …RESPONDENT = 2014- Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41961

Sec.376 I.P.C.-Village Girl - Rape - delay in FIR - reason - panchayat - explanation given is not an after thought as it has got roots in the FIR itself - mere discrepancy in date of offence -does not collapse the prosecution case - Apex court dismissed the appeal =

The explanation is not an  afterthought.  An  indication
thereof is to be found in the FIR itself where the complainant has stated  —
“the delay in lodging the report is due to  village  panchayat,  insult  and
social disrepute”. Nothing has been brought out in the cross-examination  of
the witnesses to doubt the truth and reasonableness of  the  explanation  so
offered.

15. We may however state that a mere delay in lodging the FIR  cannot  be  a
ground by itself for throwing the entire  prosecution  case  overboard.  The
Court has to seek an explanation for delay and  test  the  truthfulness  and
plausibility of the reason assigned.  If  the  delay  is  explained  to  the
satisfaction of the Court it cannot be counted against the  prosecution.  In
State of Rajasthan v. Narayan this Court observed: (SCC p. 623, para 6)

“True it is that the complaint was lodged  two  days  later  but  as  stated
earlier Indian society being  what  it  is  the  victims  of  such  a  crime
ordinarily consult relatives and are hesitant to approach the  police  since
it involves the question of morality and chastity  of  a  married  woman.  A
woman and her relatives have to  struggle  with  several  situations  before
deciding to approach the police….”

16. In State of Punjab v. Gurmeet Singh this Court has held:  (SCC  p.  394,
para 8)

“The Courts cannot overlook the fact that in sexual offences  delay  in  the
lodging of the FIR can  be  due  to  variety  of  reasons  particularly  the
reluctance of the prosecutrix or her family members to go to the police  and
complain  about  the  incident  which  concerns  the   reputation   of   the
prosecutrix and the honour of her family. It is only after giving it a  cool
thought that a complaint of sexual offence is generally lodged. ”

17. So are the observations made by this Court in Karnel Singh v.  State  of
M.P. repelling the defence contention based on delay in lodging the FIR.  In
the present case, in our opinion the delay  in  lodging  the  FIR  has  been
satisfactorily explained.”

                                                         (emphasis supplied)



22. With regard to  the  alleged  discrepancy  regarding  the  date  of  the
occurrence of the incident is also disregarded by this Court  in  the  light
of the facts and circumstance  of  the  case.  The  evidence  on  record  is
sufficient to affirm the guilt of the accused on the charge  framed  against
him. Hence, the accused is not entitled to the benefit of doubt  as  pleaded
by him before this Court.

23. Thus, after considering the entirety of the case,  we  do  not  see  any
cogent reason to interfere with the findings of fact recorded by the  courts
below. The appeal lacks merit and is, accordingly, dismissed.


2014- Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41961

  IN THE SUPREME COURT OF INDIA                          CRIMINAL APPELLATE
                                JURISDICTION

                         CRIMINAL APPEAL NO. 1114 of 2011



MUKESH                                ……APPELLANT

                                   VERSUS

STATE OF CHHATTISGARH                      …RESPONDENT



                               J U D G M E N T



V. GOPALA GOWDA, J.

This  appeal  is  directed  against  the  final  judgment  and  order  dated
10.08.2010, passed by  the  High  Court  of  Chhattisgarh  at  Bilaspur,  in
Criminal Appeal No.342 of 1996 dismissing the appeal of  the  appellant  and
upholding the conviction and sentence passed by the Trial Court in  Sessions
Trial No. 79 of 1995,  whereby  the  appellant  was  found  guilty  for  the
offence punishable under Section 376 of IPC and  was  sentenced  to  undergo
rigorous imprisonment for seven  years  with  a  fine  of  Rs.500/-  and  in
default, to undergo further simple imprisonment for 5 months.

2. For the purpose of considering the rival legal contentions urged in  this
appeal and with a view to  find  out  whether  this  Court  is  required  to
interfere with the impugned judgment of the High Court, the necessary  facts
are briefly stated hereunder:

   On 18.4.1994, at about 12.00 to 12.30 a.m.  at  night,  the  prosecutrix,
Kumari Bai, had come out of her house to answer the call of nature near  the
mango tree in the courtyard, and the accused came  from  behind  and  caught
hold of her hands and started  dragging  her  in  a  bid  to  commit  sexual
intercourse with her. When she tried to run away in order to get out of  his
clutches, he again caught hold of her hair and threw her on the  ground  and
caught hold of her legs, as a  result  of  which  the  prosecutrix  suffered
injuries on the right side of her forehead. When the  prosecutrix  tried  to
shout, he inserted a piece of cloth (scarf) into her  mouth  to  stifle  her
cries for help and committed forcible sexual intercourse  with  her.  It  is
alleged that after the commission of the offence, the accused ran  away  and
she went back to her house and informed about the incident to her sister-in-
law, brother-in-law and other  family  members.  The  FIR  was  lodged  with
Bilaspur, Police Station, Chakarbhata. The case went for trial to the  Trial
Court.

         As  many  as  12  prosecution  witnesses  were  examined   by   the
prosecution before the Trial Court in support of the case. The statement  of
the accused was also recorded under Section  313  of  Cr.P.C.  in  which  he
denied the charges levelled against him and pleaded  innocence  and  further
stated that he has been falsely implicated in the  case  and  therefore,  he
prayed for acquittal from the charge framed against him.

   After hearing the learned counsel for the parties,  the  Trial  Court  by
its judgment and order dated 15.02.1996 in Sessions Trial No.  79  of  1995,
convicted and sentenced the appellant for the offence under Section  376  of
the IPC.

3.  On appeal, the High Court after going through  the  evidence  on  record
and the statement of the witnesses held that though,  there  appears  to  be
minor contradictions in the statement of the  prosecutrix  with  respect  to
the timing of lodging the FIR, but considering her entire statement,  it  is
held that the same is rendered insignificant. Thus, the  factual  aspect  of
the matter does not lead the  court  to  disbelieve  the  testimony  of  the
prosecutrix which has already been supported by other witnesses. The  appeal
was thus dismissed on the ground that it was without substance. Hence,  this
appeal.

4. It is the contention of the learned  counsel  for  the  accused/appellant
that the story of the prosecutrix is  absolutely  marred  by  contradictions
and  omissions.  Further,  there  was  a  delay  in  lodging  the  FIR   and
contradictions regarding the date of the incident. Hence,  it  is  contended
that there was no rape committed  by  the  accused  as  alleged  and  he  is
innocent of the charge.

5. The learned counsel for the appellant has further  contended  that  prima
facie, it is a case of consent  given  by  the  prosecutrix,  otherwise,  it
would not have been possible for the appellant to commit sexual  intercourse
with her, in the  middle  of  the  night  as  he  was  not  aware  that  the
prosecutrix would come out of her house in the middle of the  night  and  he
would get an opportunity to have intercourse with her and therefore, he  has
been falsely implicated.

6. It was further  contended  by  the  learned  counsel  on  behalf  of  the
appellant that the medical report  pleaded  by  the  prosecution,  does  not
support their case because  neither  internal  nor  external  injuries  were
found on the private parts or the body of the prosecutrix by the doctor  who
had medically examined her, except for the scratch mark on her forehead.

7. It is further contended that the date of the  incident  in  the  FIR  has
been overwritten and manipulated,  whereas  as  per  the  charge  sheet  the
incident  occurred  on  18.04.1994,  however,  from  the  evidence  of   the
prosecutrix and  the  other  prosecution  witnesses,  it  appears  that  the
incident had occurred on the intervening night  of  the  16th  and  17th  of
April 1994, hence the accused is  entitled  to  the  benefit  of  doubt  and
should be acquitted from the charge.

8. It is further contended that  the  case  of  the  prosecution  is  highly
improbable and full of omissions and contradictions as the  prosecutrix  did
not raise any alarm or cried for  help  when  the  accused/appellant  caught
hold of her hand and further she did not even raise her voice, when she  had
freed herself from the clutches of the accused and ran towards the house  to
be again caught by the appellant.

   Further the statements of PW-3, PW-8 and PW-11 cannot be relied  upon  as
there are material omissions and contradictions in their statements.

9.  It is further contended that even for  the  sake  of  argument,  if  the
story of the prosecution is believed to be true, even then it is clear  from
the facts and circumstances of the case that the  intercourse,  if  any,  is
consensual in nature.

10. On the other hand, it is contended by the prosecution that the  case  of
the prosecutrix is true and strong as the complaint was lodged by  her  very
promptly and the witnesses namely, Pardeshi, PW-3 and Bahra  Bai,  PW-4,  to
whom the prosecutrix narrated the incident, have also supported the case  of
the prosecution.

11. It has been further contended on behalf  of  the  prosecution  that  the
medical report of the prosecutrix (Ex.P.4), very much makes  it  clear  that
she had suffered external  injuries  on  her  forehead.  Further,  there  is
absolutely no evidence available on record to show that the prosecutrix  was
a consenting party as alleged by the accused/appellant. He has  further  not
stated anything to this effect in his statement recorded under Section  313,
Cr.P.C.

12. On the basis of the aforesaid rival legal contentions, evidence  of  the
prosecution witnesses on record and  the  reasons  assigned  by  the  courts
below, the following points would arise for consideration of this Court:

Whether the High Court should  have  given  the  benefit  of  doubt  to  the
appellant based on the contradictions regarding the date  of  the  incident,
the FIR, charge  sheet  and  the  statements  of  the  prosecutrix  and  the
prosecution witnesses?



 What order?



REASONS

Answer to Point No. 1

13. To answer the first point, it  is  necessary  for  us  to  consider  the
following evidence:

The direct evidence of the prosecutrix.

Evidence of the witnesses and the medical evidence.

Circumstantial evidence on record.



        We have perused the evidence of the prosecutrix on  record.  In  her
deposition she has clearly stated that the accused had come from behind  and
caught hold of her and  closed  her  mouth  with  his  hand   and  when  the
prosecutrix tried to run away, he again caught hold of her  and  pulled  her
down, thereby committed rape on her. Thereafter, the accused  ran  away  and
the prosecutrix narrated the incident to her sister-in-law,  Bahorabai,  and
other family members, immediately after the incident. The  corroboration  of
this fact is also found in the statements of the prosecution witnesses  PW-3
and   PW-11.

14. Further, the accused has taken the defence that the prosecutrix did  not
call out for help, despite the fact that she had managed  to  free  herself.
However, we hold that, in the situation, where  the  prosecutrix  was  under
the threat of being raped by the appellant/accused, we cannot expect her  to
be prudent and meticulous in her thought process.  Hence,  for  her  running
away from the situation would have been the best possible  thing  to  do  at
the time, therefore, not calling  out  for  help  does  not  mean  that  the
appellant/accused did not commit the offence.  The  state  of  mind  of  the
prosecutrix cannot  be  precisely  analysed  on  the  basis  of  speculation
because each person reacts differently to a particular stressful situation.

15. Further, as has been repeatedly held  by  this  Court  in  a  catena  of
cases, the sole testimony of the witness  is  sufficient  to  establish  the
commission of rape even in the absence of corroborative  evidence.  Reliance
has been placed on the decision of this Court in  the  case  of        Mohd.
Iqbal v. State of Jharkhand[1], which states as under :-

“17. There is no prohibition in law to convict the accused of  rape  on  the
basis of sole testimony of the prosecutrix and  the  law  does  not  require
that her statement be corroborated by the statements of other witnesses.

18. In Narender Kumar v. State (NCT of Delhi) this Court has  observed  that
even if a woman is of easy virtues or used to sexual intercourse, it  cannot
be a licence for any person to commit rape and  it  further  held:  (SCC  p.
180, paras 30-31)

“30. … conviction  can  be  based  on  sole  testimony  of  the  prosecutrix
provided it lends assurance of her testimony. However,  in  case  the  Court
has reason not to accept the version of the prosecutrix on its  face  value,
it may look for corroboration. In case the evidence is read in its  totality
and the story projected by the prosecutrix is found to  be  improbable,  the
prosecutrix’s case becomes liable to be rejected.

31. The Court must act with  sensitivity  and  appreciate  the  evidence  in
totality of the background of the entire case  and  not  in  the  isolation.
Even if the prosecutrix  is  of  easy  virtues/unchaste  woman  that  itself
cannot be a determinative factor and the Court  is  required  to  adjudicate
whether the accused committed  rape  on  the  prosecutrix  on  the  occasion
complained of.”

19. In the statements of the appellant-accused under Section 313 CrPC,  only
a bald statement had been made by both the appellant-accused that they  were
innocent. No explanation had been furnished by either of them as to why  the
prosecutrix had deposed against them and involved them  in  such  a  heinous
crime.”



16. Further, the evidence of the witnesses including  the  evidence  of  the
medical report, makes  it  amply  clear  that  the  prosecution  has  firmly
established the incident of rape. None of the witnesses in their  deposition
have deviated from their version. The fact  that  the  prosecutrix  narrated
the incident of rape immediately to her family members after its  commission
is corroborated by the statements of PW-3  and  PW-11.  The  fact  that  the
prosecutrix had sustained injury  on  her  forehead  on  the  night  of  the
incident is also verified by the statements of PW-3, PW-11 and  her  husband
Alakhram (PW-10), who was not present in the village on  the  night  of  the
incident, but had rushed back immediately in the evening  on  hearing  about
the rape. This fact is also proved from the evidence of PW-3.

17. Further, the untenable contention  of  the  accused  that  he  has  been
falsely implicated in the present case because he had seen  the  prosecutrix
in a compromising position with her brother-in-law, is  baseless  and  false
and cannot be accepted by this Court. The witnesses, PW-3, who is  the  wife
of  the  brother-in-law  and  PW-10,  the  husband   of   the   prosecutrix,
respectively, have specifically denied the allegation made  by  the  accused
against the prosecutrix in their evidence. Thus, the defence has  failed  to
satisfy this  Court  with  substantive  evidence  to  prove  the  allegation
against the prosecutrix.

18. So far as the Medical Report is concerned, Dr.  (Smt.)Samdariya  (PW-4),
who has medically examined the prosecutrix has stated that she had  observed
a scratch mark on her forehead, that was  10  x  ¼  c.m.  in  size  and  had
further opined that since the prosecutrix was a married  lady,  no  definite
opinion regarding rape could be given. However, in our opinion, the  absence
of a conclusive opinion of the medical examiner regarding rape in case of  a
married woman, cannot be a ground  for  acquittal  of  the  accused,  having
regard to the positive and substantive evidence of the prosecutrix  and  the
other prosecution witnesses. In  the  case  of  State  of  U.P.  v.  Chhotey
Lal[2], this Court held as under:-

“32. Although the lady doctor, PW 5 did not find any injury on the  external
or internal part of  the  body  of  the  prosecutrix  and  opined  that  the
prosecutrix was habitual to sexual intercourse, we are afraid that does  not
make the testimony of the prosecutrix unreliable. The fact of the matter  is
that the prosecutrix was recovered almost after three weeks.  Obviously  the
sign of forcible intercourse would not persist for that long  a  period.  It
is wrong to assume that in all cases of intercourse with the  women  against
will or without consent, there would be  some  injury  on  the  external  or
internal parts of the victim. The prosecutrix has clearly deposed  that  she
was not in a position to put up any struggle as she was taken away from  her
village by two adult males. The absence of injuries on  the  person  of  the
prosecutrix is not sufficient to discredit her evidence; she was a  helpless
victim. She did not and could not inform the neighbours where she  was  kept
due to fear.”

                                                         (emphasis supplied)

19. Further, the external injury on the forehead of the  prosecutrix  cannot
be disregarded. The fact that the prosecutrix was bleeding at  the  time  of
narrating the incident has been categorically stated in the evidence of  PW-
3, PW-11  and  PW-12  and  in  the  FIR.  The  medical  examination  of  the
prosecutrix was not conducted just after the incident. In such a  situation,
it is not possible to get a clear and certain opinion  with  regard  to  the
commission of rape. Thus, the  version  of  the  incident  narrated  by  the
prosecutrix and the injury on the forehead has  been  duly  corroborated  by
the medical evidence on record.

20. Now, we come to the part of circumstantial evidence. The most  important
fact, that the prosecutrix had narrated the  incident  of  rape  immediately
after its commission, gives us a strong reason to  believe  the  version  of
the prosecution. Further, the conduct of the other witnesses including  that
of her husband is very natural. The evidence of PW-12, Ram Khilawan, who  is
the neighbour of the accused and as such has neither  any  enmity  with  the
accused nor was he friend with Alakhram and others has  also  supported  the
case of the prosecution. Further, Nem Prasad Tondon, PW-1,  is  the  Patwari
who prepared the spot map and Devi Das, PW-2 have also  supported  the  case
of the prosecution.  Further,  Dr.  V.D.Sonwani,  PW-5,  who  had  medically
examined the accused, has stated in  his  report  at  Ex.P-6,  that  he  was
capable of having  sex.  Further,  from  the  place  of  occurrence,  broken
bangles of the prosecutrix were  recovered  and  seizure  memo  Ex.P-2,  was
prepared in this respect.

21. Further, the delay in lodging the FIR has been  well  explained  by  the
prosecution and thus, it cannot be considered a ground for acquittal of  the
accused. It is clear from the facts and circumstances of the case  that  the
prosecutrix, being a married lady, could not have  lodged  the  FIR  on  her
own, especially in case of Indian circumstances. As stated in the  facts  on
record, her husband was not in the village and  returned  on  the  following
evening of the incident. Further, the incidence had  occurred  late  in  the
night and there was no elder person of the  family  present  to  go  to  the
Police Station and lodge the complaint regarding the incident. Hence, it  is
natural for her to wait for her husband to return. This fact is verified  by
the statements of PW-11 and  PW-2.  Further,  the  distance  of  the  police
station from the place of residence  is  shown  to  be  20  k.m.  Thus,  the
conduct of the prosecutrix and the witnesses was  natural  and  logical  and
the accused cannot get the benefit of delay in the filing of  complaint.  In
this regard reliance has been placed on the decision of this  Court  in  the
case of Sri Narayan Saha v. State of Tripura[3], which states as under:-

“5.We wish to first deal with the plea relating to the  delayed  lodging  of
the FIR. As held in a large number of cases, mere delay in lodging  the  FIR
is really of no consequence, if the reason  is  explained.  In  the  instant
case, the evidence of PW 3, the victim  and  that  of  her  husband,  PW  4,
clearly shows that there was initial reluctance to report the matter to  the
police by PW 4. He, in fact, had taken his wife to  task  for  the  incident
and had slapped her. In Karnel Singh v. State of M.P. it was  observed  that
a woman who was a victim of sexual violence, is not  an  accomplice  to  the
crime but is a victim of another person’s lust and, therefore, her  evidence
need not be tested with the same amount of suspicion as that of  a  culprit.
Therefore, the rule of prudence that her evidence must  be  corroborated  in
material particulars, has no application. At the most, the  Court  may  look
for some evidence which lends assurance.



  XXX            XXX              XXX

10. There was no reason as to why  a  woman,  more  particularly  a  married
woman, would falsely implicate the two accused persons. Minor  discrepancies
in the testimony of PWs 3 and 4 were sought to be highlighted.  Taking  into
account the fact that the evidence was recorded in Court after  about  seven
years of  the  occurrence,  these  have  been  rightly  held  to  be  of  no
consequence by both the Trial Court and the High Court.”
                                                         (emphasis supplied)


Further, in the case of State of Rajasthan v.  N.K.[4],  the  accused,  this
Court has held as under:-

“14. It is true that the  incident  dated  1-10-1993  was  reported  to  the
police on 5-10-1993. The  prosecutrix  was  a  married  woman.  Her  muklana
ceremony had not taken place. Muklana ceremony is a rural  custom  prevalent
in Rajasthan, whereunder the bride is left with the parents  after  marriage
having been performed and is taken away by the husband  and/or  the  in-laws
to live with them only after a lapse of time. The origin of the custom  owes
its existence to performance of child-marriages which are  widely  prevalent
there. The muklana was yet to take  place.  The  prosecutrix  was  a  virgin
prior to the commission of the crime and this fact finds  support  from  the
medical evidence. The parents of  such  a  prosecutrix  would  obviously  be
chary to such an incident gaining publicity because it  would  have  serious
implications for the reputation of the family and also on the  married  life
of the victim. The husband and  the  in-laws  having  become  aware  of  the
incident may even refuse  to  carry  the  girl  to  reside  with  them.  The
incident if publicised  may  have  been  an  end  to  the  marriage  of  the
prosecutrix. Added to this is the communal tinge  which  was  sought  to  be
given by the community of  the  [pic]accused.  PW  10,  the  father  of  the
prosecutrix, the prosecutrix, PW 2 and  other  witnesses  have  stated  that
while they were about to move to the  police  station  they  were  prevented
from doing so by the community fellows of the  accused  who  persuaded  them
not to lodge a report with  the  police  and  instead  to  have  the  matter
settled by convening a panchayat  of  the  village  people.  After  all  the
family of the victim had to live in the village in  spite  of  the  incident
having taken place. The explanation is not an  afterthought.  An  indication
thereof is to be found in the FIR itself where the complainant has stated  —
“the delay in lodging the report is due to  village  panchayat,  insult  and
social disrepute”. Nothing has been brought out in the cross-examination  of
the witnesses to doubt the truth and reasonableness of  the  explanation  so
offered.

15. We may however state that a mere delay in lodging the FIR  cannot  be  a
ground by itself for throwing the entire  prosecution  case  overboard.  The
Court has to seek an explanation for delay and  test  the  truthfulness  and
plausibility of the reason assigned.  If  the  delay  is  explained  to  the
satisfaction of the Court it cannot be counted against the  prosecution.  In
State of Rajasthan v. Narayan this Court observed: (SCC p. 623, para 6)

“True it is that the complaint was lodged  two  days  later  but  as  stated
earlier Indian society being  what  it  is  the  victims  of  such  a  crime
ordinarily consult relatives and are hesitant to approach the  police  since
it involves the question of morality and chastity  of  a  married  woman.  A
woman and her relatives have to  struggle  with  several  situations  before
deciding to approach the police….”

16. In State of Punjab v. Gurmeet Singh this Court has held:  (SCC  p.  394,
para 8)

“The Courts cannot overlook the fact that in sexual offences  delay  in  the
lodging of the FIR can  be  due  to  variety  of  reasons  particularly  the
reluctance of the prosecutrix or her family members to go to the police  and
complain  about  the  incident  which  concerns  the   reputation   of   the
prosecutrix and the honour of her family. It is only after giving it a  cool
thought that a complaint of sexual offence is generally lodged. ”

17. So are the observations made by this Court in Karnel Singh v.  State  of
M.P. repelling the defence contention based on delay in lodging the FIR.  In
the present case, in our opinion the delay  in  lodging  the  FIR  has  been
satisfactorily explained.”

                                                         (emphasis supplied)



22. With regard to  the  alleged  discrepancy  regarding  the  date  of  the
occurrence of the incident is also disregarded by this Court  in  the  light
of the facts and circumstance  of  the  case.  The  evidence  on  record  is
sufficient to affirm the guilt of the accused on the charge  framed  against
him. Hence, the accused is not entitled to the benefit of doubt  as  pleaded
by him before this Court.

23. Thus, after considering the entirety of the case,  we  do  not  see  any
cogent reason to interfere with the findings of fact recorded by the  courts
below. The appeal lacks merit and is, accordingly, dismissed.



                       …………………………………………………………………J.
                     [V.GOPALA GOWDA]





                                                 …………………………………………………………………J.
                [ADARSH KUMAR GOEL]



New Delhi,                                           September 25, 2014

-----------------------
[1]

      [2]         (2013) 14 SCC 481

[3]
      [4]         (2011) 2 SCC 550
[5]
      [6]         (2004) 7 SCC 775
[7]
      [8]         (2000) 5 SCC 30



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NON REPORTABLE




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