ORDER
Lokeshwar Singh Panta, J.
1. In Sessions Trial No. 2 l-S/7 of 1998, the Sessions Judge, Shimla, convicted the appellant-accused for offence under Section 376 of the Indian Penal Code So and sentenced him to undergo rigorous imprisonment for 7 years with the fine of Rs. 1000 / -. In default of payment of fine the appellant shall undergo further rigorous imprisonment of one year. The appellant has challenged his conviction and sentence in this appeal. The prosecutrix (PW-1) is the wife of Raju (PW-3) . They are the residents of village Chadach, Tehsil Chopal, District Shimla. In the year 1997, PW Raju was employed as Chowikidar by Bija Ram (PW 5) to look after his orchard at his 'Dogri' (out house) located about 1 Km. away from his village Kuhl. Both the husband and wife started living in the Dogri of PW Bija Ram.
2. The case of the prosecution against the appellant is that on 25-5-1997, PW 3 left the 'Dogri' around 6.00 a.m. for village Shantha to attend a local fair. Prosecutrix remained behind in the 'Dogri'. At about 6.30 a.m. appellant came to the aforesaid 'Dogri' and made inquiry from the prosecutrix about the whereabouts of her husband. She told the appellant that her husband had gone to village Shantha to see the fair. The appellant then caught the prosecutrix her arm and swang her around himself with full force. Then he released the arm of the prosecutrix and as a result thereof she fell down at one corner of the room. The appellant then over pwered her. He stripped her naked by breaking loose the string of her salwar. Then he committed rape on her. After committing the crime, he ran away from the scene of the occurrence. The prosecurtix changed her clothes and went to the house of her in-laws in village Chadach, which is at a distance of about 6 kms. from the 'Dogri'. She narrated the incident to her mother-in-law Smt. Budhi Devi (PW 2), who advised her to keep quiet about the incident as it would likely to cause embarrasment to the prosecutrix and also other family members. PW 3 returned to village Chadach after spending three days at village Shantha and after his arrival the prosecutrix narrated the entire incident to him. PW 3 in turn informed his father about the incident, who called a Panchayat of elderly persons of the village. The Panchayat members gave the verdict that the accusation levelled by the prosecutrix against the appellant was false and imposed a fine of Rs. 150/- upon the prosecutrix. On 12-6-1997, an anonymus complaint was received by the Sub Divisional Magistrate, Chopal, stating therein that the prosecutrix who belongs to Scheduled caste was subjected to forcible sexual intercourse by the appellant and that when the matter was reported to the Panchayat , no action was taken against the appellant but on the other hand prosecutrix was punished by imposing fine. The Sub Divisional Magistrate forwarded the complaint to station House Officer, Police Station, Chopal who summoned the prosecutrix and her husband to the Police Station. The prosecutrix reported the matter to the police on the basis of which First Information Reprot Ext. PA was recorded which was signed jointly by her and her husband PW 3. The police got the prosecutrix medically examined from Dr. Shyam (PW 6) on 19-6-1997, who issued medico legal certificate Ext. PD regarding medical examination of the prosecutrix. As per his opinion the prosecutrix had changed her clothes several times and had also taken bath after the incident. She had been menstruated for the last 2 days and, therefore, vaginal swab could not be taken for examination. No injury was found on the person of the prosecutrix nor was any scar of any old injury noticed. After arrest of the appellant he was also medically examined by PW 6, who, on such examination vide medico legal certificate Ext. PF opined that he did not find anything suggesting that the appellant was not capable of performing sexual intercourse. Dr. Shyam did not find any injury mark on the person of the appellant.
3. The investigation of the case was conducted by Bidhi Singh (PW 9), Sub Inspector. He visited the spot and took into possession underwear (Ext. P1), salwar (Ext. P2) and shirt (Ext. P-3), handed over to him by the prosecutrix. He also prepared a site plan (Ext. PH) and recorded the statements of the witnesses. The wearing appears of the prosecutrix so taken into possession were sent to Forensic Science Laboratory for analysis. In report (Ext. PJ) of the Chemical Analyzer, under -wear and salwar contained human blood and human semen.
4. After investigation the final report under Section 173 of the Code of Criminal Procedure, for the trial of three persons, namely, the appellant, Kirpa Ram and Chet Ram for the offences under Sections 201, 452 and 376 of the Indian Panel Code and under Section 3 (viii) and 3 (xi) of the Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act of 1989) was submitted before the Judicial Magistrate 1st Class, Chopal on 30-7-1997. The learned Magistrate vide his detailed order dated 24-3-1998, committed the case to the special Court under the Act of 1989 of trial.
5. On consideration of the material on record, the learned Sessions Court heard the parties on the question of charge. The learned trial Court on 16-7-1998 came to the conclusion that no prima facie case for the offence under Section 201 read with Section 34, IPC was made out against Kirpa Ram and and Chet Ram. They were, therefore, discharged of such offence. A prima facie case under Section 376, IPC was found against the appellant. He was, as such charged for such offence, to which he pleaded not guilty.
6. As regards the offence under Section 3 of the Act of 1989, the learned trial Court observed as under :
As regards the charge under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the State may file a fresh charge-sheet in case so desired because joint trial of offences punishable under the I.P.C. and under the aforesaid Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not permissible under the law.
7. The learned Trial Court thereafter proceeded with the trial of the appellant for the offence under Section 376, I.P.C. as a Court of Session.
8. To prove the charge against the appellant, the prosecution examined as many as 9 witnesses. The appellant was examined under Section 313 of the Code of Criminal Procedure where in he denied the prosecution case and claimed to be innocent. He stated that on the day of the occurence he was not present in the village but had gone to see the fair being held at village Shanta. He admits that the husband of the prosecutrix had also gone to see the fair on the day of the occurrence. He also admits that the Panchayat Members summoned him and the prosecutrix, but the prosecutrix refused to take oath before them, the Panchayat Members found that the accusation levelled against him by the prosecutrix was false and, therefore, a fine of Rs. 150/ was imposed upon the prosecutrix by the Panchayat. He pleaded that 'one Indira Devi who in fact is not a widow but claims hereself to be so wanted to get the job of water carrier in the school. He also applied for the said job and got the employment being a handicapped person. Indira Devi was bent upon to remove him from the service and has planted false case against him through the prosecutrix'. The appellant examined Relu Ram (DW 1) and Mangat ram (DW 2) in his defence.
9. On consideration of the entire material on record, the learned Sessions Judge found the appellant guilty of the commission of offence under Section 376, IPC and accordingly convicted and sentenced him as aforesaid. The appellant has challenged his conviction and sentence in this appeal.
10. A learned single Judge who decided the appeal on July 5, 1999 concluded as under :
Consequently, the appeal is, allowed. Conviction and sentence is set aside. Since the very commitment of the case to the Special Court by the learned Magistrate vide order dated 24-3-1998 was illegal as he could not have taken cognizance of the offences under the Act of 1989, the learned trial Court shall return the record of the case to the learned Magistrate for being returned to the prosecution for being presented to the competent Court.
Be it stated that the setting aside of the conviction and sentence of the accused shall not be a bar to the State for proceedings against the accused in accordance with law for the offence alleged to have been committed by him.
The accused, who is presently lodged in jail, undergoing sentence imposed upon him, shall be set at liberty forthwith , if not required in any other case, and he shall be treated as on bail as heretofore.
11. State of Himachal Pradesh carried the judgment and order of the learned single Judge by means of Criminal Appeal No. 765/2000 to the Supreme Court which came to be decided on Sept. 8, 2000 (reported in AIR 2000 SC 2940 : 2000 Cri LJ 4039). The concluding paragraph of the judgment of the Supreme Court reads as under (Paras 7 and 8) :
The premises adopted by the learned single Judge of the High Court is patently erroneous. The Sessions Court which tried the case for the offence under Section 376, IPC continued to have jurisdiction to try the same, and the order of committal was legally valid. The appeal filed before the High Court could only be disposed of on merits and not on the premise erroneously taken by the learned Single Judge. He has not considered the appeal on merits. We, therefore, set aside, the impugned judgment. We remit the case back to the High Court for disposal of the appeal afresh on merits.
This appeal is disposed of accordingly.
12. It was in these circumstances, that now the appeal has been listed before this Court for decision on merits.
13. I have heard Mr. Chander Narain Singh, learned counsel for the appellant and Ms. Shubh Mahajan, learned Assistant Advocate General for the State and have also scrutinized material on record.
14. Mr. Chander Narain Singh, learned counsel firstly contended that the judgment of the learned trial Court convicting the appellant for offence under Section 376, IPC was based on wrong facts i.e. entire evidence on record has not been properly considered; farfetched presumption has been drawn in favour of the prosecution defence evidence led by the appellant was unnecessarily criticized and fundamental principle of criminal law that the prosecution has to prove its case beyond all reasonable doubt against the appellant was totally discarded by the trial Court.
15. The learned counsel for the appellant has taken me through the evidence of the prosecution witnesses to contend that there is vital variation in giving time of the alleged occurrence by PW 1 and PW 3 in their versions in Hindi language and true translated versions in English language and therefore, the judgment of the learned trial Court relying upon English versions is wholly un-sustainable and contrary to Hindi versions. It is no doubt true that the prosecutrix in her statement in Hindi version has said that her husband PW 3 left 'Dogri' at 6'O clock to see fair in village Shantha and at about 6.30 the appellant came to their house and made inquiry about the whereabouts of her husband and father-in-law . In her true translated English language, time of leaving the 'Dogri' by the husband of the prosecutrix is typed as 6 a.m. and arrival of the appellant in the 'Dogri' where the prosecutrix was present all alone is mentioned around 6.30 a.m. It is again true that in the version of PW 3 recorded in Hindi language he said that on 25-5-1997 he left the 'Dogri' at 6 p.m. and the appellant came to the Dogri where his wife was left alone at 6.30 O clock but in translated English version time of his leaving the 'Dogri' is noticed at 6 a.m. and the time of coming of the appellant to the 'Dogri' is stated around 6.30 a.m. The learned trial Court has taken the time of the commission of the crime by the appellant at 6.30 a.m. on 25-5-1997 in the judgment from translated version in English language. In my considered view, no benefit can be derived by the appellant about the variation of time occurred in the Hindi and English versions of the prosecutrix and her husband PW 3. In charge-sheet framed against the appellant time and date of the commission of the offence are clearly stated at 6.30 a.m. on 25-5-1997. In F.I.R. (Ext. PA) the prosecutrix and her husband PW 3 have stated that it was on 25-5-1997 at about 6.30 a.m. when the appellant came to their 'Dogri' and committed rape on the prosecutrix. Question No. 3 put to the appellant recorded under Section 313, Cr.P.C. reads as under :-
It is further in evidence that on 25-5-1997 at 6 a.m. Raju (PW 3) went to attend a fair in village Shantha and his wife Sumitra Devi remained behind in the aforesaid Hut all alone. What have you to say
In answer to this question the appellant has said :
It is correct. I know only this much that Raju had gone to see a fair in village Shantha.
16. PW Budhi Devi in her statement testified that last year in the month of 'Jaith' the prosecutrix came to village Chadach in the evening and disclosed that the appellant had physically assaulted her. On consideratiion of her statement it is clear that the offence was committed by the appellant in the morning of the day of occurrence.
17. On re-appraisal and re-consideration of the above referred to evidence brought on record, it stands clearly proved that the incident had taken place on 25-5-1997 at 6.30 a.m. In the circumstances it cannot be said that the appellant was misled by non mentioning of time of occurrence at 6.30 a.m. by the prosecutrix and her husband in their Hindi version. He had the knowledge about the date and time of the incident as alleged by the prosecution and therefore, no prejudice was caused to him due to non-mentioning of 6.30 a.m. by the two witnesses in their Hindi version.
18. Now the sole question arises for consideration is whether the prosecution has proved its case against the appellant beyond reasonable doubt or not. The case of the proscutrix entirely rests upon the evidence of the prosecutrix and other corroborative evidence led by the prosecution. The prosecutrix deposed that, at the relevant time she along with PW 3 used to reside in the 'Dogri' of PW Bija Ram in village Kuhal and that on the fateful day, around 6' O clock her husabnd left the 'Dogri' to witness local fair being held at village Shantha. The appellant at about 6.30 came to the Dogri and inquired about the whereabouts of her husband and father-in-law and when she told him that her husband had gone to village Shantha to witness the local fair whereas her father-in-law was at his residence at village Chadach, the appellant finding her alone in the 'Dogri' , caught hold her and tore her clothes and laid her on the floor of a room and thereafter subjected her to forcible sexual intercourse. She also stated that though she cried for help, yet her cries could not attract anybody as the 'Dogri' is situated in a forest faraway from the village. The appellant after committed the crime run away and she after changing her clothes went to village Chadach where her in-laws used to reside. She narrated the incident to her mother-in-law (PW 2) who advised her to keep quiet as the disclosure of the incident to other persons would likely to put her and entire family to shame and disrepute. She narrated the entire incident to her husband on the day when he returned to the house of his parents after spending three days at village Shantha. Her husband called the Panchayat of elderly persons of the village, but the Panchayat Members instead of taking action against the appellant imposed a fine of Rs. 150/- her because she is Harizen by caste. She also stated that she was called to the Police Station through some police official where she reported the incident vide FIR Ext.PA. During investigation she prodcued her wearing appeals underwear (Ext. P-l), Salwar (Ext. P-2) and Shirt (Ext. P-3) to the police. She was also medically examined.
19. The testimony of the prosecutrix to the extent that she alongwith her husband used to reside in the 'Dogri' of PW Bija Ram at the relevant time was corroborated by PW 2 her mother-in-law Smt. Bidhi Devi and PW 5 Bija Ram. PW 2 also corroborated the testimony of the prosecutrix to the extent that she (the prosecutrix) narrated the incident to her on the very day of the occurrence.
20. PW 3 the husband of the prosecutrix had deposed that on 25-5-1997 he went to Shantha to witness local fair leaving her wife in the 'Dogri' and that when he returned from the fair to his native village Chadach after three days from Village Shantha his wife told him that on the day when he left for village Shantha the appellant came to their 'Dogri' and committed rape on her. He disclosed this fact to his father on the same day who brought the incident to the notice of members of village Panchayat. The Panchayat members after asking the details of incident from his wife, declared his wife a liar and directed him and other family members to pay Rs. 150/- as fine. He stated that after few days, he received summons from Police Station, Chopal and in compliance thereto, he and his wife went to the Police Station where his wife lodged the report Ext. PA duly signed by both of them. Suggestion put to the prosecutrix and her husband on behalf of the appellant that they had made false accusations against appellant at the instance of one Mangat who was on inimical terms with the appellant was categorically denied by them.
21. In his defence the appellant pleaded that he has been false implicated in the present case at the instance of one Indira Devi who was a compitative candidate with the appellant for the post of Water Carrier in Government School, Dhabas. It is not believable that the prosecutrix aged about 18 years would lodge a false report of rape at the instance of Indira Devi or Mangat Ram whose sister could not get job against the appellant who was employed as a Water Carrier. It is not in dispute that the prosecutrix belongs to scheduled caste family whereas the appellant and Mangat Ram belong to Brahmin family. The appellant has not shown any strong motive against the prosecutrix or her husband implicating him in a false case and in the absence of any ulterior motive of false implication of the appellant, his defence plea does not appear to be correct.
22. In State of Punjab v. Gurmit Singh (1996) 2 SCC 384 : 1996 Cri LJ 1728, their Lordships took note of the existing rate of crime against women and held : SCC p 403, para 21 : at Pp 1739-40, Para 20 of Cri LJ.
21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violate the victim's privacy and personal integrity, but inevistably causes serious psychological as well as physical harm in the process. Rape is not merly a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on chargesd of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probailities of a case and not get swayed by minor contradictionss or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecurtrix inspires confidence, it must be relied upon without seeking corrboration of her statement in material particulars. If for some reason the Court finds it different to place implicity reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
Referring to an earlier judgment in State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) 1 SCC 550 : 1990 Cri LJ 889, the Supreme Court in Gurmit Singh case 1996 (2) SCC 384 : 1996 Cri LJ 1728 held : SCC Pp 395-97, paras 8-9) : at p 1735, Para 7 of Cri LJ.
The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a Court just to make a humiliting statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be relaible. Seeking corrboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of a injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, as considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corrboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be ovelooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons lust and it is improper and undersiable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Interference have to be drawn from a given set of facts and circusmtances with realistic diverstity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even, if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial, mind as deprobable. In State of Maharashtra v. Chandraprakash Kewalchand Jain 1990 (1) SCC 550 : 1990 Cri LJ 889, Ahmadi, J. (as ' the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words : SCC p 559, para 16 : at Pp 894-95, Para 16 of Cri LJ.
A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corrborated in material particulars. She is undoubtely a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care of and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix , there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which required it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corrboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the caste disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
We are in respectful agreement with the above exposition of law. In the insfant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever., We have no hesitation in acting upon her testimony alone without looking for any corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix.
23. In the light of the above said ratio of the decision of the Apex Court, I find that in the case on hand the testimony of the prosecutrix discussed hereinabove suffers from no infirmity and she is a reliabel and truthful witness. There is ample corrboration available on the record to lend further credence to the testimony of the prosecutrix in the form of the deposition of PW 2 to whom the prosecutrix had narrated the incident in the evening on the same day and she disclosed the occurrence to her husband immediately after he returned from attending the fair. Medical evidence is not of much relevance for the reason that prosecutrix was examined by Dr. Shyam after about 24 days from the the alleged day of occurrence and further because she is a married woman and was habitual of sexual inter course.
24. The appellant led defence evidence. Relu Ram (DW 1) stated that he along with appellant and his wife had travelled together by a bus from Dhawach to Chopal on 24-5-1997 and from Chopal they went on foot to village Shantha. They stayed for the night in village Shantha and on 25th of May they participated in the fair. They came back from village Shantha on 25th May at 4 pm. and stayed for a night at Chopal. The evidence of this witness does not inspire confidence. It was not the case of the appellant that he had gone to village Shantha to see fair on 24-5-1997 accompanied by his wife and DW 1. In answer to Question No. 5 he had categorically stated that he had gone to see the fair at village Shantha on 25-5-1997 but no time has been mentioned by him as to when he had left to village Shantha and from which place. The evidence of DW 2 Mangat Ram that he had been the appellant in a fair at, village Shantha on 24th and 25th of May, 1997 is also unbeliable. Had the appellant met both these witnesses in a fair on 24th and 25th May, he would have made mention of this fact in his statement recorded under Section 313, Cr.P.C. Both the defence witnesses undisputedly belong to higher' caste and so also the appellant is, therefore, it appears that the defence witnesses are interested in shielding the appellant to escape the rigour of punishment for the offence allegedly committed by him against the prosecutrix a Harizen woman. There is no material placed on record to prove that under what authority or jurisdiction the Panchayat Members could impose fine of Rs. 150/- upon the prosecutrix in this matter. The action of the Panchayat members would go to show that they too wanted to hush up the matter to protect the appellant from criminal prosecution.
25. The learned counsel for the appellant has placed reliance on some decisions to prove that when alleged forcible sexual intercourse was committed upon the prosecutrix and no external injury was found on her person by the Doctor, in such circumstances the evidence of the prosecutrix a grown up lady cannot be believed and relied upon. (See Pratap Mishra v. State of Orissa AIR 1977 SC 1307 : 1977 Cri LJ 817, Puttan v. State 1972 Cri LJ 270 (All), State of H.P. v. Bhawani Singh 1992 (1) Sim LC 93 (Him Pra), Babu Dey v. State of West Bengal 2000 Cri LJ 329 (Cal), Prem Chand v. State of H.P. 2000 Cri LJ 951 (Him Pra), Om Prakash v. State of of H.P. 2000 Cri LJ 1591 (Him Pra), Rabindranath Balliarsingh v. State 2000 Cri LJ 2535 (Orissa), Sushanta alias Tutan Chakraborty alias Bhattarcharjee v. State of Tripura 2000 Cri LJ 195 (Gauhati), Shyamlal v. State of M.P. 2002 Cri LJ 344 (Madh Pra) and Dungar v. State of Rajasthan 2002 Cri LJ 386 (Raj).
26. I have considered the ratio of the above cited decisions. In some of the cases the learned Judges of the Courts found material contradictions in the statement of prosecutrix and contents of F.I.R. lodged by her. The evidence of the prosecutrix , eyewitness and other interested witnesses' in these cases did not inspire confidence and was not found corroborative by the medical evidence and the investigation in some of these cases was found unfair by the Courts, and in those peculiar facts and circumstances the Courts had given benefit of doubt to the accused involved in those cases. In the case on hand it is not even the case of the appellant that the prosecutrix was a consenting party. It is true that the prosecutrix stated that she was forcibly thrown on the surface of the room of the 'Dogri' by the appellant and thereafter he committed rape upon her. It is her say that she cried for help but her cry could hot attract the people because the 'Dogri' was at a distance far away from the village in the forest. It is also true that no injury was found on her person in the medical evidence, but it is the admitted fact that the prosectrix was medically examined by Doctor after about 24 days from the day of the occurrence and therefore, by that time no injury could have been noticed by the Doctor on her person.
27. Mr. Chander Narayan Singh, learned counsel next contended that there was a gross delay of 24 days in lodging the F.I.R. by the prosecutrix which was tainted and after due deliberation to implicate the appellant in a false case. He also contend that there are glaring and major contradictions and improvements made by the prosecutrix in her version before the Court and in the F.I.R. Ext. PA and in such circumstances the prosecution case was not free from doubt. In support of this submission the learned counsel relied upon Balakrishna Swain v. State of Orissa 1971 Cri LJ 670 : AIR 1971 SC 804, Koja Ram v. State of Rajasthan 1995 (2) Crimes 359 : 1995 Cri LJ 1575 and Surjan v. State of M.P., AIR 2002 SC 476.
28. In Balakrishna Swain's case (1971 Cri LJ 670) (supra) their Lordships have held that unjustified and unexplained long delay on the part of Investigating Officer in recording statement of material eye-witness during investigation of murder case will render evidence of such witness unreliable. In Koja Ram v. State of Rajasthan 1995 Cri LJ 1575 (supra), learned single Judge of Rajasthan High Court said that inordinate delay in filing F.I.R. and its despatch to concerned Magistrate by prosecutrix a married woman of 22 years of age for offence under Section 376 and 341, I.P.C. was not explained and her testimony was found full of contradictions and inconsistencies which was also not corroborated by medical evidence. In Surjan v. State of M.P. AIR 2002 SC 476 (supra) their Lordships of the Surpeme Court have observed that solitary testimony of victim of rape can be relied upon only when it inspires confidence. In that case allegation that prosecutrix was raped by six persons and incident was not disclosed to any one by her for 2-3 days and that there was delay of 10 days in lodging F.I.R. and the delay was not explained. Further the report of medical examination of the prosecutrix was also not brought on record. In those facts and circumstances, the uncorrborated testimony of the prosecutrix was not relied upon and the conviction of the accused was set aside.
29. By now the law is well settled by the Supreme Court that mere delay in filing the First Information Report is no ground to doubt the case of the prosecutrix that the evidence given by her should not be accepted. There may be various reasons for filing a complaint after some delay. The accused is not entitled to acquittal and the prosecution evidence cannot be discarded on the ground that the complaint was not filed immediately. But filing of complaint after considerable lapse of time is one of the grounds which may be taken into account by the Court while dealing with the case of rape. (See State v. Narayan AIR 1992 SC 2004 : 1992 Cri LJ 3655, State v. Narasimha (1994) 4 SCC 453 : 1994 AIR SCW 2354, State v. Gurmit Singh (1996) 2 SCC 384 : 1996 Cri LJ 1728.
30. In State of Punjab v. Gurmit Singh 1996 Cri LJ 1728 (supra), the Supreme Court stated (para 7) :
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 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.
31. In State of H.P. v. Gian Chand (2001) 6 SCC 71 : 2001 Cri LJ 2548, while dealing the case of rape trial the Supreme Court held : SCC p 79 para 12 : at pp 2552-53, Para 11 of Cri LJ.
12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay,' the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the present case, P.W 1, the mother of the prosecutrix is a widow. The accused is a close relation of the brother of the late husband of PW 1. PW 1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. The incident having occurred in a village, the approach of the in-laws of PW 1 displayed rusticity in first calling upon the father of the accused and complaining to him of what his son had done. It remained an unpleasant family affair on the next day of the incident which was tried to be settled, if it could be, within the walls of the family. That failed. It is thereafter only that the complainant, the widow woman, left all by herself and having no male family member willing to accompany her, proceeded alone to the police station. She was lent moral support by Ruldu Ram, the Village Panch, whereupon the report of the incident was lodged. The sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explaination for the delay. It was found to be so by the learned Sessions Judge. The High Court has not looked into the explanation offered and very superficially recorded a finding of the delay having remained 'unexplained' and hence fatal to the prosecution case. It is common knowledge and also a judicially noted fact that incidents like rape, moreso when the perpetrator of the crime happens to be a member of the family or related therewith, involve the honour of the family and, therefore, there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the Court. A cool thought may precede lodging of the FIR. Such are the observations found to have been made by this Court in State of Punjab v. Gurmit Singh (1996) 2 SCC 384 : 1996 Cri LJ 1728 and also in the case of Harpal Singh v. State of H.P. (1981) 1 SCC 560 : 1981 Cri LJ 1. We are satisfied that the delay in making the FIR has been satisfactorily explained and, therefore, does not cause any dent in the prosecution case.
32. Applying the dicta of the above decision in the facts and circumstances of the present case this Court is satisfied that de-lay in lodging the FIR has been satisfactorily explained by the prosecution, therefore, it cannot be said that the FIR was tainted or it was deliberate or intentional to falsely implicate the appellant in the commission of the crime. The prosecutrix is an illiterate poor scheduled caste woman. She hails from a remote backward area of Tehsil Chopal. Her husband was not at home when the crime was committed by the appellant. She narrated the incident to her mother-in-law on the day of the occurrence who persuaded her not to narrate the incident to anybody else as it was likely to put the entire family to shame or dishonour. The prosecutrix narrated the entire incident to her husband on his return from village Shantha. Her husband too is an illiterate and rustic villager who does not understand the consequences/ importance of promptly reporting the matter to the police. He narrated the incident to his father who called the Panchayat of elderly persons of the village. The panchayat member summoned both the prosecutrix and the appellant and tried on hush up the matter at their own level. Instead of taking any action against the appellant or reporting the matter to the police by the elderly persons of the Panchayat, they punished the prosecutrix by imposing a fine of Rs. 150/-upon her which was paid by her father-in-law. The prosecutrix, her husband and father-in-law accepted the justice meted out to them at the hands of the elderly persons of the village. Some unknown person sent an anonymous complaint (mark Ext. P-J) to the Sub-Divisional Magistrate. Chopal which was received in his office on 11-6-1997 giving the entire details of the incident and giving the name of the appellant who criminally assaulted the prosecutrix and committed forcible sexual intercourse with her. Sub-Divisional Magistrate forwarded the said complaint to the Station House Officer, Chopal who summoned the prosecutrix to the Police Station on 19-6-1997 when the prosecutrix made the FIR Ext. PA about the incident duly signed by her and her husband PW-3. Thus, this was not a case of deliberate or intentional delay on the part of the prosecutrix to lodge the FIR against the appellant. In my considered view the prosecution has satisfactorily explained the ' delay and, therefore, the appellant cannot derive any benefit from mere delay in making the FIR to the Police. The ratio of the above-referred to decisions relied upon on behalf of the appellant by his learned counsel is of no help to the appellant to hold that the FIR was tainted document or it was a deliberate attempt on the part of the prosecutrix to implicate the appellant falsely in this case at the instance of some other interested person(s).
33. The learned counsel then pointed out that in FIR Ext. PA the version of the prosecutrix was that when the appellant came to 'Dogri' at about 6.30 a.m. on 25-5-1997 he made inquiry about the whereabouts of her father-in-law whereas in her deposition before the Court she stated that the appellant asked for about the whereabouts of her husband and father-in-law both, as such there was discrepancy in her two versions and, therefore, she cannot be said to be a truthful witness and her testimony has to be discarded as a whole. I am afraid to accept this contention of the learned counsel. The discrepancy pointed out is not fatal to the prosecution case nor it can be said that the prosecutrix is not a reliable and truthful witness. She has given detailed account of the incident in the FIR and contents of the FIR has been corroborated by her in her deposition before the Court.
34. The next contention of the learned counsel that the FIR Ext. P-A recorded during the course of the investigation was hit by Section 162, Cr.P.C. cannot be accepted. No investigation was conducted by the police before lodging of the FIR by the prosecutrix. The prosecutrix was called to the police station by the Station House Officer after he received the copy of the complaint Ext. PJ from the office of the Sub-Divisional Magistrate, Chopal and the investigation of the crime was taken into hand by the Investigating Officer after lodging of the F.I.R.
35. The learned counsel lastly contended that the investigation in the present case was defective since the Investigating Officer has not promptly recorded the statements of the witnesses under Section 161, Cr.P.C. It is no doubt true that the FIR Ext. PA was recorded on 19-6-1997 and the statements of prosecutrix, her husband, father-in-law and mother-in-law were recorded on 23.-7-1997. It is again settled position of law that in cases of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be correct to acquit the accused solely on account of defect in investigation. To do so would tantamount to playing into the hands of the Investigating Officer even if the investigation is designedly defective (see State v. Gurmit Singh, AIR 1996 SC 1393 : 1996 Cri LJ 1728. PW-9 Bidhi Singh, Investigating Officer, after registration of the FIR Ext. PA dated 19-6-1997 got the prosecutrix medically examined on 20-6-1997. He took into possession the wearing apparels of the prosecutrix on 20-6-1997 vide memo Ext. PB. Site plan of the place of occurrence Ext. PH was also prepared on the same day. However, statements of the prosecution witnesses were recorded on 23-7-1997. On reappraisal and consideration of the entire evidence of the prosecutrix, PW-2 her mother-in-law and PW-3 her husband and other corroborative evidence discussed in the earlier part of the judgment and also the legal position of law, late recording of the statements of the prosecution witnesses under Section 161, Cr.P.C. by the Investigating Officer will not vitiate the trial and the defect in the investigation, if any, will be of no consequence to the prosecution case. The last contention of the learned counsel also does not merit acceptance.
36. No other point was urged by the learned counsel for the parties.
37. In the result, for the above-stated reasons there is no merit in this appeal and it is accordingly dismissed. The appellant is on bail. His bail and surety bonds are cancelled. The appellant shall surrender before the trial Judge forthwith to undergo the remaining part of the sentence imposed upon him by judgment and order dated 1-3-1999.