Judgment:
P.P. Gupta, J.
1. This is an appeal preferred by the accused appellant, Ashok Kumar alias Bhura, against the judgment and order dated 22-2-1989, convicting the appellant Under Section 376, I.P.C. and sentencing him to undergo R.I. for three years by Sri P. C. Mathur, III Addl. Sessions Judge, Aligarh in S.T. No. 223/88.
2. The appellant was charged Under Section 376, I.P.C. for having committed rape on Smt. Bhagwati, wife of Mahabir Singh, resident of Jagdeo Nagaria, P. S. Gonda, district Aligarh, on 7-7-1986 at about 10-00 p.m.
3. The facts material for the purpose of this appeal, in brief, as disclosed in the FIR, are indicated below.
4. Smt. Bhagwati was sleeping on a Chabutara in front of her house. Her son, Bhupendra Singh, aged about 9 years, and her younger son, Yogendra Singh, aged about one year, were also sleeping there. Her Jethani, Smt. Banshi, wife of Fateh Singh, and her father-in-law, Dr. Man Singh, son of Brindaban, were sleeping in front of their houses close by.
5. At about 10.00 p.m. in the night on 8-7-1986, the appellant, Ashok Kumar, son of Hodal Singh, resident of the same village, arrived there and started having intercourse with Smt. Bhagwati. She remained silent presuming that he was her husband. After a few seconds, she realised that the person, having intercourse with her, was not her husband. She tried to push him away but, being stronger, he continued to have intercourse with her. She then raised an alarm and on hearing her voice her Jethani, Smt. Banshi, and father-in-law arrived at the Chabutara, where she was sleeping. They tried to apprehend the appellant, but he managed to run away.
6. A FIR of the incident was lodged the next day on 8-7-1986 at 1.00 a.m., i.e. about three hours after the alleged occurrence, The prosecutrix was medically examined on 8-7-1986 at 1-10 p.m. No marks of external injury were seen over her private parts. Hymen was absent. Vaginal smear was taken and sent for Pathological examination for the evidence of spermatozoa. No opinion about rape was, however, expressed by the Doctor.
7. The Chemical Examiner examined the underwear of the appellant and Petticoat of the prosecutrix, which they were allegedly wearing at the time of occurrence. No spearmatozoas were found on the under-wear but they were found on the Petticoat.
8. Only two witnesses of facts, viz. the prosecutrix P.W. 1 Smt. Bhagwati and her husband, P.W. 2, Mahabir Singh, were examined by the prosecution. Rest of the witnesses, viz. Smt. Banshi, the Jethani and Man Singh, the father-in-law of the prosecutrix, were not examined as they filed their affidavits in the lower court denying to have seen the occurrence. Out of the two witnesses of facts examined, P.W. 2, Mahabir, the husband of the prosecutrix, is a formal witness, who had not seen the occurrence. Thus, the only witness left was the prosecutrix, Smt. Bhagwati, herself. On the solitary statement of Smt. Bhagwati, the prosecutrix, and other attending circumstances of the case, the learned Sessions Judge found the appellant guilty of the offence Under Section 376, IPC. Accordingly, the appellant was convicted and sentenced as above.
9. It was argued on behalf of the appellant that the story, as set up in the FIR itself, is highly unbelievable and unpalatable. A bare reading of the FIR makes it clear that it is a false and cooked up case against the appellant. It was further alleged that because of strained relations between the parties, a false case had been set up against the appellant.
10. According to the FIR, the occurrence is said to have taken place at about 10.00 p.m. in the night, in an open place. The prosecutrix, Smt. Bhagwati, was sleeping on a Chabutara in front of her house along with her two sons, one of whom was 9 years old.
Nearby, her Jethani, Smt. Banshi, and her father-in-law, Dr. Man Singh, were also sleeping in front of their houses. Allegedly, the appellant, Ashok Kumar, arrived there and started having intercourse with Smt. Bhagwati. She neither protested nor raised any alarm presuming that he was her husband, who had returned from village Pancha-yat. After a few seconds she realised that he was not her husband but some one else. Then she tried to push the appellant off but being stronger he did not leave her and continued intercourse. It was then that she raised alarm, hearing which her Jethani, Smt. Banshi, and her father-in-law, Dr. Man Singh, arrived there, who saw the incident with their own eyes. They tried to apprehend the appellant but he managed to run away.
11. At the very outset it may be said that the story, as set up in the FIR, is highly improbable, unbelievable and unacceptable. It is highly unnatural and unbelievable that the appellant would have chosen a place for having intercourse where nearby the close relatives of the prosecutrix were also sleeping. It is also highly improbable to believe that even when the appellant commenced intercourse with the prosecutrix she failed to identify as to whether he was her husband or some one else. Even from the odour of the perspiration, physique, the size and length of the organ, the manner of intercourse and other factors, a married woman, having two children, would immediately realise as to whether the person having intercourse with her was her own husband or someone else. It cannot, therefore, be believed that the prosecutrix could not realise so immediately after the commencement of intercourse. Thus, this fact that at the time the intercourse was commenced, the prosecutrix did neither resist nor raised any alarm makes her own conduct very doubtful.
12. In later part of the FIR, it is mentioned that after the prosecutrix realised that the person having intercourse with her was not her husband, but an outsider, she tried to push him away but did not raise any alarm at that very moment. This also raises a suspicion. Her normal conduct, in the circumstances, would have been to raise alarm immediately thereafter. Instead, she gave an opportunity to the appellant to complete the intercourse and it was only thereafter that she raised an alarm.
13. It is also important to note that both Smt. Banshi, the Jethani, as well as Dr. Man Singh, the father-in-law of the prosecutrix, who are said to have seen the occurrence, have not supported the prosecution story. They have filed their affidavits denying that such an occurrence took place. They are close relatives of the prosecutrix. According to the version in the FIR, both of them were sleeping in the open, close to the place where the occurrence took place. It is also mentioned in the FIR that on hearing the alarm raised by the prosecutrix, they arrived at the scene of occurrence, saw the occurrence also and tried to apprehend the accused appellant, who managed to run away. Had it been a fact, they would have certainly supported the prosecution. There cannot be any occasion for them to have shielded the appellant instead of saving the honour of their close relative. This is a circumstance which goes against the prosecution.
14. The statement of the prosecutrix, Smt. Bhagwati, during trial, contains a lot of improvement over the FIR. Firstly, she has stated that her sons, Bhupendra and Yogen-dra, were sleeping on the other cot. This improvement has been made realising that the story as set up in the FIR that intercourse was done on the same cot on which her both the sons were sleeping, may not be believed. She has further stated that as soon as the appellant arrived there and lifted her Petticoat, she identified him and tried to raise alarm, but she was prevented as her mouth was gagged by the appellant. This important fact is missing from the FIR. She further stated that after closing her mouth by one hand, the appellant managed to complete the intercourse. This is another fact which cannot be believed.
15. In this connection it is important to note that neither in the FIR nor in his statement, any source of light is mentioned. On the contrary, the prosecutrix, Smt. Bhagwati, has stated that it was a dark night.
She has further stated that the appellant was wearing a bush-shirt of green colour and trousers. While mentioning the colour of bushshirt as green, she could not give the colour of the Paijama because of dark night. This statement is not in consonance with her earlier statement in which she states that she identified the person committing rape as Ashok Kumar, the appellant. If the night was dark and there was no source of light, how she could identify the appellant and the colour of the bushshirt that he was wearing.
16. Again, she has stated that after the occurrence she called her husband from Panchayat, who then proceeded to the Police Station for loding the report along with her. In subsequent part of her statement she has stated that her husband arrived on his own on hearing the alarm. He was not sent for. This is in contradiction of her earlier statement that she called her husband after the occurrence.
17. Another material contradiction in her statement under Section 161, Cr.P.C. and the statement made during trial is to the effect that her son was there on the same cot on which the rape was committed and when he got compressed and screamed during intercourse, the appellant brought her down from the cot. She subsequently retracted from this part of her statement. P. W. 4, K. D. Pathak, the Investigating Officer, has stated on oath that the prosecutrix, Smt. Bhagwati, stated before him that her sons, Bhupendra, aged 9 years, and Yogendra, aged one year, were sleeping in the same cot on which she was sleeping. During the intercourse her son, Yogendra, got compressed and screamed and it was thereafter that she was brought down from the cot by the appellant. By that time the intercourse was not complete. It was only then that she realised that the person, who had brought her down, was not her husband. Immediately thereafter the appellant gagged her mouth thus preventing her from raising alarm. She claims to have raised alarm only after the appellant left her after completing the intercourse. Thus, the statement given by the prosecutrix, during investigation, is against her statement during trial. As stated earlier, it was not clearly mentioned in the F.I.R. whether her two sons were sleeping on the same cot or on a separate cot. Again, before the Investigating Officer, she has stated that they were sleeping on the same cot and when the appellant came over her, the younger son got compressed and screamed. Thereupon she was brought down from the cot by the appellant. It was then that she realised and identified that the person was not her husband. She was prevented from raising alarm because her mouth was gagged. In her statement, during trial, she has given a different story. As has been stated above, she has stated that as soon as the appellant lifted her Petticoat, she woke up and identified the appellant. She tried to scream but was prevented from doing so as the appellant gagged her mouth. Thus, it is clear that the statement of the prosecutrix, given during trial, is at a various with her statement given during investigation. When her attention was drawn to this material contradiction, on vital and important facts, she could not given any satisfactory explanation. Her statement, during trial, is also at variance with the F.I.R. on material points.
18. It is to be considered whether under these circumstances it would be safe to base the conviction on sole testimony of the prosecutrix.
19. It was submitted on behalf of the State that in such cases of rape corroboration may not be insisted as a rule.
20. I agree that corroboration is not the sine-qua-non for a conviction in a rape case. On principle, the evidence of a victim of sexual assault stands at par with evidence of an injured witness. 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. But corroboration may be insisted upon when there is likelihood of the prosecutrix 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.
21. Moreover, in the case of a grown up and married woman, having grown up children, it is always safe to insist on such corroboration. Such corroboration may be sought either from direct or circumstantial evidence or from both.
22. In the instant case, however, it is established that the accusation of rape against the accused is either motivated or is on account of the instinct of her self preservation. The probabilities factor in this case is also found to be out of tune.
23. As has already been stated above, there is no corroboration of the statement of the prosecutrix either from direct or circumstantial or even from medical evidence. Her own Jethani and Sasur, who are said to be eye witnesses, have filed affidavits denying that any such occurrence took place. There is no other witness to corroborate her. The circumstances also go against the prosecutrix instead of supporting her. Hence, it would not be safe to base conviction of the appellant on the sole testimony of the prosecutrix, Smt. Bhagwati.
24. It was next submitted on behalf of the State that minor omissions in F.I.R. may not be material to disbelieve the prosecution story.
25. No doubt, a F.I.R. is a previous statement which can, strictly speaking, be only used as to corroborate or contradict the maker of it. It is not necessary that all the details given in his statement in Court by complainant be given in the F.I.R. Matters of detail need not be mentioned in it. Minor omissions and variations in F.I.R. would not affect the prosecution case, if it is substantially the same as was mentioned in the F.I.R.
26. Though F.I.R. is not an encyclopaedia, but designed, deliberate and belated plea of prosecution in evidence of prosecutrix that she was brought down the cot by the appellant and her mouth was gagged thus silencing her and preventing her from raising alarm by the appellant who had sexual intercourse with her against her will and without her consent, when all these important facts were not mentioned in the F.I.R., is meant only to demolish the theory of consent. Such omission is not inconsequential.
27. In the instant case the F.I.R. was lodged by the prosecutrix herself to whom all the above important facts were known; and she did not mention these facts in the F.I.R., such omission goes to the root of the prosecution and affects the probabilities of the case; such conduct is relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
28. The F.I.R. is not specific on the point whether the two sons of the prosecutrix were sleeping on the same cot or on a different cot. The F.I.R. also does not mention as to where her husband was at the time of occurrence. During investigation she has stated that her both sons were sleeping on the same cot. During intercourse, her younger son got compressed and screamed. It was thereafter that she was brought down the cot by the appellant. It was then that she realised that the person committing rape was not her husband. She tried to raise alarm but she was prevented from doing so by the appellant, who gagged her mouth. In her statement, during trial, she claims to have identified the appellant immediately after he came over her and lifted her petticoat. She tried to raise alarm but was prevented on account of her gagging her mouth by the appellant. There is no averment in the F.I.R. that she was brought down the cot by the appellant where the intercourse was completed. According to her statement during trial, it was only then that she realised that the person who had brought her down the cot was not her husband but the appellant. It was there that her mouth was gagged by the appellant thus preventing her from raising alarm. She admits that the night was dark. No source of light is mentioned. How then she could identify the appellant is also not clear. Moreover, it also cannot possibly be believed that by closing the mouth with one of his hands, the appellant succeeded in bringing her down the cot and in completing intercourse with her. There is also no explanation as to why she did not raise any alarm while she was brought down the cot by the appellant. Thus, this part of the story that she identified the appellant cannot also be believed. There is variation also in her statement regarding the arrival of her husband. In the F.I.R. it is not mentioned that her husband had gone to attend Panchayat meeting. In her statement during trial she has stated that her husband was sent for and after his arrival both of them went to the Police Station for lodging the F.I.R. In subsequent breath she has stated that he was not sent for but he came there of his own accord. It cannot be believed that the husband would have gone to attend a Panchayat meeting at 10.00 p.m. in the night. It is also important to note that none of the witnesses, who were there in the Panchayat meeting, have been examined by the prosecution. It is, therefore, not established that any Panchayat meeting was held on the date and time when this occurrence allegedly took place and the appellant was also present there. In all these circumstances it cannot be believed that her husband was away in the night when this occurrence allegedly took place. Thus, looking to the variations in the F.I.R., the statement of the prosecutrix under Section 161, Cr.P.C. and her statement during trial, I am of definite opinion that the prosecutrix, who is solitary witness in the case, is totally unreliable and unbelievable. In the circumstances, it will not be safe to base conviction of the appellant on her sole testimony. The possibility of false implication of the appellant in the case due to strained relations between the father of the accused and the husband of the prosecutrix cannot be ruled out.
29. Looking to the totality of the circumstances and the entire prosecutrix evidence, I am of the opinion that the case against the appellant has not been proved by the prosecution. The appellant is, therefore, entitled to acquittal.
30. For the reasons given above the appeal must be allowed.
31. The Appeal is allowed and conviction and sentence of the appellant, Ashok Kumar, are set aside. He is not on bail. He need not surrender. His bail bonds are dismissed.