Judgment:
Rajendra Saxena, J.
1. This appeal filed under Section 374(2), Cr.P.C. has been directed against the judgment dated 16-7-1991 passed by the learned Special Judge for SC/ST (Prevention of Atrocities Act Cases)-cum-Additional Sessions Judge, Bikaner, whereby he convicted the appellant for the offence under Section 376, IPC and sentenced him to seven years' rigorous imprisonment and a fine of Rs. 500/-; in default to further undergo two months imprisonment.
2. The relevant facts of this case are that Tara Chand (P.W.2) used to cultivate his land situated in Chak 3 ADM. He also lived there in his hamlet (Dhani) and that his parents used to reside in village Kodiwan. Nearby his field, the agricultural land of appellant Duli Chand is situated, who resides in his 'Dhani in Chak 8 BBM. Tara Chand and the appellant used to help each other in irrigating their-fields. Tara Chand's wife, Smt. Chawli (P.W.1) aged about 19-20 years used to call appellant's wife as her 'Mausi' and respect the appellant. On 29th December, 1989, the appellant was irrigating the fields of Tara Chand, who was making preparations for going to his village Kodiwan to fetch one cow therefrom. It is alleged that the appellant assured Tara Chand that in his absence his wife will come to Tara Chand's Dhani and sleep with Smt. Chawli. On this assurance, Tara Chand left his Dhani at about 1.00 p.m. It is alleged that on the same day at about 8.00 p.m., the appellant came to the Dhani of Smt. Chawli and told her that since his wife had fallen ill, she should accompany him to his Dhani. Smt. Chawli had a dauthter aged about six months. It is the case of the prosecution that the appellant lifted the child and Smt. Chawli accompanied him; that when they reached near the sand dunes situated about one square (Murabba) away from Tara Chand's Dhani the appellant put the child on the ground and suddenly caught hold of Smt. Chawli by clasping her in his arms. The appellant forcibly fell her down and committed rape. It is alleged that Smt. Chawli raised hue and cry and also resisted by her hands and legs, but nobody came to her rescue. It is further alleged that the appellant thereafter left Smt. Chawli weeping and went away. Thereupon, she came back to her Dhani and stayed there overnight. On 30th December, 1989, she went to the Dhani of Kana Kumhar, where she stayed till 31st December, 1989. There she narrated her useful tale to Smt. Sunmitra w/o Kana (P.W. 4) and Smt. Radha w/o Virbal Kumar (P.W. 5). Tara Chand returned from Kodiwan and reached his Dhani in the night of 31st Dec., 1989, which was locked. Thereupon, he immediately went to the appellant, who informed him that Smt. Chawli was staying in Kana's Dhani. Tara Chand reached the Dhani of Kana Ram at about 11.00 p.m. and while he was returning therefrom and coming to his Dhani, Smt. Chawli narrated the whole incident to him in the way. On 1st January, 1990. Tara Chand Collected Virbal, Kana, Hanumana Ram and Lichhman Singh Rajput and told them about the incident, who advised him to lodge a report in the police. Thereupon., Tara Chand went to Kodiwan to fetch his father Raja Ram and along with him, lodged an oral report to Rajesh Beniwal (P.W. 6), S.H.O., P.S. Khajuwala (proposed) on 2-1-90 at 5.30 p.m. The S.H.O. recorded the said information as 'Parcha Bayan' (Ex. P. 1). On the same day at 8.00 p.m. a case was registered at P.S. Pugal, vide FIR (Ex. P. 9). On 3-1-90, the S.H.O. inspected the site and prepared site plan Ex. P. 2 and its memo Ex. P. 9. On the same day, Dr. P.K. Gehlot (P.W. 3) examined Smt. Chawli and found that her hymen was old torn, which was healed. He did not find any marks of injury on her private parts. Her cervix and vagina were found to be healthy. The vagina admitted two fingers easily. Her cervix was soft, uterus was inverted and ante flexed of 6-8 weeks size. Dr. Gehlot, vide his report Ex. P. 3, opined that Smt. Chawli was used to sexual intercourse and that no opinion could be given regarding a recent sexual intercourse. He, however, preserved the viginal swabs and smear taken from her vagina, which were sent to the Forensic Science Laboratory. However, no report from the F.S.L. was received. After usual investigation, a charge-sheet was filed before the Judicial Magistrate No. 1, Bikaner, who committed the case to the learned trial Judge. The appellant pleaded not guilty. The prosecution examined as many as eight witnesses and relied on documents Ex. P. 1 to P-13. The appellant in his plea recorded under Section 313, Cr.P.C. denied all the circumstances appearing against him and asserted that a false case had been foisted against him. However, he did not examine any witness in his defence. The learned trial Judge held that the delay in filing the FIR was satisfactorily explained; that though Smt. Sumitra (P.W. 4) and Smt. Radha (P.W. 5) did not support the prosecution case and the medical evidence also did not disclose any external injury on the private parts of Smt. Chawli or any seminal stain on her clothes, still there was no reason to disbelieve her statement. He accordingly, by the impugned judgment convicted and sentenced the appellant. Hence, this appeal.
3. I have heard learned counsel for the appellant and the learned Public Prosecutor at length and carefully perused the record of the lower Court.
4. Shri Garg has vehemently contended that the learned trial Judge has not properly scanned and scrutinized the statement of Smt. Chawli, which is inconsistent, self contradictory and uncorroborated. According to him, Smt. Chawli is an unreliable witness, whose testimony has neither been corroborated by the medical evidence nor by any circumstantial evidence nor by any witness. He has submitted that in this case, the FIR was lodged after a long delay of about five days, which has not been properly and satisfactorily explained. Therefore, the prosecution case becomes highly doubtful and that the offence under Section 376, IPC has not been successfully brought home against the appellant without all reasonable doubt.
5. On the other hand, the learned Public Prosecutor has reiterated the reasonings given by the learned trial Judge and supported the impugned judgment.
6. I have given my most anxious and careful consideration to the rival submissions. At the outset it may be noted that though the provisions of the Evidence Act, no where provide that corroboration of the statement of prosecutrix in a rape case is necessary for convicting the accused, but a large volume of case law has grown up culminating into a rule of prudence that generally the statement of the prosecutrix could be corroborated either from the direct or circumstantial evidence or from both. If the statement of the prosecutrix does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence then there is no reason to insist on corroboration. In other words, if the statement of the 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. But, if her testimony is inconsistent, replete with material contradictions or pregnant with improbabilities then corroboration from the medical evidence and other circumstantial evidence should be insisted upon. It is also true that the statement of the prosecutrix, who complains of rape or sexual molestation, should not be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion, but if it suffers from some basic infirmity or lacks credence or is added with material inconsistencies and contradictions or has not been corroborated either by the medical evidence or by any other direct or indirect evidence, then the conviction on the basis of her statement should not be up held. Keeping in view the aforementioned well crystalized principle for appreciating the evidence in rape cases, let us now examine, discuss, analyse and scrutinize the evidence adduced in this case.
7. Smt. Chawli (P.W. 1) has stated that on the assurance of the appellant that he would send his wife to sleep at his Dhani, her husband Tara Chand had gone to his native village Kodiwan on Friday to bring a cow. She stated that on the same day in the evening at about 8-9 p.m., the appellant came to her Dhani and asked to accompany him to his house on the pretext that his wife was suffering from fever; that at the time, her daughter aged about six months was sleeping outside and that the appellant lifted her and started for his Dhani. She deposed that since she used to treat the appellant as her father-in-law and respected him, she followed him. She told that when they crossed about 3-4 Murrbbas and reached near the 'Banjar land' surrounded by sand dunes, the appellant placed her daughter on the ground, while in the FIR and her police statement the place of incident has been stated about one Murabba away from her 'Dhani'. She stated that, thereafter the appellant caught hold of her, opened her salwar and felled her down on the ground. She stated that since it was the first episode of such kind in her life, she was stunned and dumbed. She deposed that thereafter the appellant made her legs straight, inserted his penis in her vagina and committed rape. She thereupon raised an alarm and that her shirt had been torn. She told that the appellant had committed sexual intercourse without her consent, that at the time of alleged incident she was also putting on an underwear, which the appellant had taken out from her one leg and that the underwear remained in her second leg during the alleged incident. She deposed that after the incident she had used her underwear for wiping off the semen and thrown it away at the place of occurrence. She stated that for this reason there were no semenal stains on her Salwar. It may be mentioned here that she did not narrate anything about her underwear either to her husband or to Smt. Radha or Smt. Sumitra. In the FIR Ex. P-8 also, there is no mention that Smt. Chawli was putting on an underwear; that she had wiped off the semenal stains by that underwear and had thrown the same at the place of occurrence. Even in her statement under Section 161, Cr. P.C. Ex. D-1, these facts do not find mention. Smt. Chawli was put a specific question about this material omission in Ex. D-1, but she has utterly failed to give any satisfactory explanation. Evidently, such an important omission amounts to a material contradiction.
8. Smt. Chawli, in her cross-examination specifically admitted that when the appellant committed rape with her, she neither inflicted fist blows nor caught hold of the hairs of the appellant nor bite him. She stated that she simply threw her legs. In the next breath, she told that she could not put any resistance because she had become stunned. (To quote, her, 'GUM SUM HO GAI'). She further deposed that at the time of the alleged incident, she had put her legs straight and that her hands were under-neath the appellant. Therefore, her statement about throwing her hands and legs in protest, stand contradicted from her own statement. Smt. Chawli further stated that the appellant committed sexual intercourse with her for about an hour or quarter to an hour; that throughout the incident appellant's mouth was just near her face, but still then she did not bite him. She deposed that her Salwar had not torn, but near the place of its tying cord (Nara) it was slightly torn. However, Rajesh Beniwal (P.W. 6) I.O., who seized the Salwar Article through seizure memo Ex. P-10, has specifically stated that her Salwar was not torn from anywhere. Thus, on this count also, her testimony stands contradicted.
9. Smt. Chawli has refuted the suggestion that she had illicit relations with the appellant previously. She has further denied the suggestion that when her husband came to know about her illicit relations with the appellant, he beat her and thereafter fabricated this false case against him. She deposed that she knew the appellant for last 3-4 years; that the appellant used to come to her Dhani quite often and help her husband in irrigating the field and that he had stayed in her Dhani only for one night prior to the incident. On the other hand (P.W. 2) Tara Chand has stated that the appellant frequently visited his Dhani and had also stayed there at least on 4-5 nights. Thus, this part of the statement of Smt. Chawli also stands contradicted.
10. The statement of Smt. Chawli also does not find any corroboration from the medical evidence. Oh the other hand, Dr. R. K. Gehlot (P.W. 3) has deposed that she was aged about 19 years and had a well developed body. He did not find any injuries or stains on her private parts and that her hymen was old torn and that she was carrying a pregnancy of about 6 to 8 weeks. He deposed that Smt. Chawli was used to sexual intercourse and that there was no evidence to suggest that she had a recent sexual intercourse. He told that he had preserved the vagina swabs and smear, which were sent for chemical examination. As mentioned earlier, no chemical examination report from the State Forensic Science Laboratory was received in this case and as such there is not a fringe of evidence to suggest that those vaginal swab and smear were stained with semen. Hence the testimony of Smt. Chawli does not find any corroboration by the medical evidence. Had she offered any resistance at the time of the alleged occurrence, naturally she must have received some injuries either on her back, thighs or on her private parts. But no such injury was sustained by her, which implies that she did not offer any resistance.
11. Smt. Chawli stated that the appellant after committing rape went away and that she returned to her Dhani and stayed there over night; that on the next day i.e. Saturday morning, she went to the Dhani of Kana Ram Kumhar, where his wife Smt. Sumitra and Smt. Radha w/o Birbal were present. She deposed that she had told them about the alleged incident. But both these witnesses have categorically denied this. They have deposed that Smt. Chawli did not disclose anything about the alleged incident to them. P. W. Sumitra and Radha have further stated that Smt. Chawli had come to Kana's house on Sunday i.e. 30-12-89 and not on 29-12-89 and that her husband Tara Chand had come there on Monday i.e. 31-12-89. These witnesses have disowned their police statements Ex. P-4, and Ex. P-5 respectively and have been declared hostile.
12. In Ravindra Kumar Day v. State of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173), it has been held that when a witness is declared hostile, his evidence cannot be excluded altogether and that he does not become unreliable, witness merely because the party, who called him, was allowed to cross-examine and that on this account, his statement cannot be thrown over board. Therefore, merely describing a person as hostile witness, it does completely efface his evidence. Smt. Sumitra (P.W. 4) and Smt. Radha (P.W. 5) have not corroborated the testimony of Smt. Chawli. There is no reason to disbelieve them. Thus, the prosecution has miserably failed to prove that immediately after the alleged incident, Smt. Chawli had narrated about the incident to them.
13. Smt. Chawli (P.W. 1) has deposed that on the next date of the alleged incident, she went to Kana's house and that in the evening of the next day thereafter (i.e. on Sunday, the 30th December, 1989) her husband came there in the evening, that at that time she had told him about the alleged incident and that thereafter they came to their Dhani. On the other hand, Smt. Sumitra (P.W. 4) and Smt. Radha (P.W. 5) have stated that Tara Chand had come there on Monday i.e. 31-12-89 at about 11.00 p.m. Tara Chand (P.W. 2) on the other hand has deposed that on the date of alleged incident, he had left his Dhani in the after noon and went to Kodiwan, where he stayed for one day. After one day, when he returned to his Dhani, in the evening, he did not find his family there. He therefore, went to appellant's Dhani, who told him that Smt. Chawli was at Kana Ram's house. Therefore, he went to Kana Ram's house and that while he was coming back for his Dhani, then in the way, Smt. Chawli had narrated about the incident to him. But in his police report Ex. P-1, he had stated that even at Kana Ram's house, Smt. Chawli had told him as to why did he leave her with such a rude person. But during trial, he has changed his version. Tara Chand further stated that next day morning i.e. on 1-1-1990 he collected the inhabitants of nearby Dhani namely Virbal Ram, Kana Ram, Hanuman and Laxman Singh and told them about the alleged incident, who advised him to lodge a report in the police. But the prosecution has not cared to examine any of these witnesses, which raises an adverse inference against the prosecution. Thus, the factum of alleged Panchayat on 1-1-90 has not been proved at all.
14. Tara Chand has deposed that he had taken the aforementioned persons to the place of occurrence, where they found Chawli's bangles and that pieces of her one or two broken bangles were also lying there. He admitted that he did not find any underwear of Smt. Chawli there. He further deposed that when the police came to inspect the site, those bangles were lying there. It is significant to note that there is no mention about the bangles or pieces thereof lying at the place of occurrence either in the FIR Ex. P-1 or in the site plan Ex. P-2 or memo of site plan Ex. P9. On the other hand, Rajesh Beniwal (P.W. 6) I.O. has specifically stated that he did not find any bangle or the underwear at the place of occurrence. Therefore, it is abundantly apparent that Tara Chand has unsuccessfully tried to invent a new story about bangles or the pieces of bangles lying that the place of occurrence. Similarly, Smt. Chawli has also unsuccessfully tried to introduce the story regarding her underwear.
15. It appears that since no semenal stains were found on the Salwar of Smt. Chawli seized by the police, she has invented a new story about nylon underwear from which she had allegedly wiped off the semenal stains coming out from her vagina and had thrown the same at the place of occurrence. Positively, she did not tell about the underwear story either to her husband or to Smt. Radha or Smt. Sumitra. Therefore, Smt. Chawli's statement remains uncorroborated.
16. In Sukhram v. State of Rajasthan, 1989 (2) RLR 439, it has been observed that for proving the offence of rape some sort of corroboration should be available preferable in the shape of medical evidence. It has been further observed that if sexual intercourse is committed against the consent or desire of the prosecutrix and she struggles to free herself then some sort of injuries are likely to be found at her back, thighs or on her private part. It has also been observed that if bangles were broken due to the use of force at the time of forcible intercourse, then some injuries are also likely to have been caused on the wrist of the prosecutrix and that in absence of such corroboration by the medical and circumstantial evidence, the accused is entitled for benefit of doubt.
17. Similar are the facts of the case in hand. Smt. Chawli's testimony is not straight, consistent and reliable. On the other hand, her statement is studded with significant inconsistencies and material contradictions. Her statement has also not been corroborated either by the medical evidence or by any circumstantial evidence. Thus, she is not a witness of sterling worth and in absence of any corroboration worth the name, the learned trial Judge has committed an illegality of fact as well as of law in treating her as a credible witness. In my considered opinion, the learned trial Judge has failed to discuss, analyse and scan the prosecution evidence in a right perspective and has committed an illegality in convicting the appellant on the basis of the bald and uncorroborated testimony of Smt. Chawli.
18. Apart from it, there is a delay of about five days in lodging the FIR in this case. The delay has also not been properly and satisfactorily explained. According to Tara Chand, he left his Dhani in the afternoon of 29-12-89 and returned in the night of 31st December, 1989. On the same day he went to Kana Ram's house and came back to his Dhani along with Smt. Chawli where in the way she had disclosed him about the alleged incident. According to him, in the morning of 1-1-90, he collected Kana, Birbal, Hanuman and Lichman Singh, told them about the incident and also went to the place of occurrence. Those persons advised him to go to the police station, but he could not muster courage. Thereupon, he went to his native village Kodiwan and on 2-1-90 along with his father Raja Ram he reached to the police station at about 5.30 p.m. and lodged the report Ex. P-1. But on the other hand, Smt. Chawli has stated that Tara Chand came to Kana Ram's house on 30-12-89. However, as per statements of Sumitra (P.W. 4) and Radha (P.W. 5) Tara Chand had come to Kana Ram's house in the evening of Monday i.e. 31-12-89. Since the prosecution did not produce Kana Ram, Birbal, Hanuman, Lichman and Rajaram, the delay for 1-1-90 and 2-1-90 has not been explained at all. Therefore, this inordinate delay also casts doubt about the prosecution version. As mentioned earlier, as per contents of the FIR, the alleged incident took place at about one Murabba away from Tara Chand's Dhani, but on the other hand, Smt. Chawli has stated: that incident had taken place about 3-4 Murabba away from her Dhani. Thus, the prosecution evidence regarding the place of occurrence is also not consistent.
19. Hence, for the reasons mentioned above, in my considered opinion, the prosecution has miserably failed to successfully bring home the offence under Section 376, IPC against the appellant without all reasonable doubt and that on the basis of such vague, inconsistent, self contradictory, uncorroborated and unreliable evidence, the conviction of the appellant cannot be sustained.
20. In the premise of the above discussion, I allow this appeal, set aside the impugned judgment dated 16-7-91 passed by the learned trial Judge and acquit appellant Duli Chand of the offence under Section 376, IPC. The appellant shall be set at liberty henceforth, if not required in any other case.