Penal Code, 1860 – S. 376 – Rape – The lapses on the part of the Investigating Officer in non-seizure of the garments of the accused or the prosecutrix or contradiction in testimony of the neighbours as to who reached first at the place of occurrence would not tell upon trustworthiness of the prosecutrix.
Citations : 2021 Cri.L.J. 3933
ICL 2021 (8) Pat. 981
IN THE HIGH COURT OF JUDICATURE AT PATNA
CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
CRIMINAL APPEAL (SJ) No.500 of 2019; 12-08-2021
Arising Out of PS. Case No.-150 Year-2012 Thana- RANIGANJ District- Araria
Sanoj Mandal @ Sanoj Kumar Mandal v. State of Bihar
For the Appellant/s : Md. Ziaul Quamar, Advocate Mr. Syed Ashfaque Ahmad, Advocate For the Respondent/s : Mr. Bipin Kumar, A.P.P
J U D G M E N T
The sole appellant-Sanoj Mandal @ Sanoj Kumar Mandal has challenged his conviction under Section 376 of the Indian Penal Code whereunder the appellant was awarded ten years rigorous imprisonment and a fine of rupees fifty thousand which is payable to the victim of the crime. The impugned judgment of conviction dated 26.11.2018 and order of sentence dated 29.11.2018 have been passed, in Sessions Trial No. 499 of 2013 corresponding to CIS No. 3347 of 2014 arising out of Raniganj P.S. Case No. 150 of 2012, by the learned Additional Sessions Judge-II, Araria.
2. The prosecution case as disclosed in the written report of the prosecutrix dated 08.08.2012 is that in the night of 07.08.2021, the prosecutrix was sleeping in her house in a separate room whereas the parents were in the adjoining room. At about 12:00 P.M., the appellant, who is neighbour, entered into her room and forcefully opened her lower garments and ravished her by keeping his hand on her mouth to prevent any alarm. However, she anyhow made alarm and the parents came and saw the appellant. Thereafter, on alarm of the parents, the neighbours also reached there and the appellant was taken into custody. Soon the mother of the appellant Sobha Devi and brother Mithu Kumar (who were also co-accused and were acquitted of the charges under Sections 341, 332, 457 of the Indian Penal Code) came there and after commission of assault against the prosecution forcefully took away to the appellant. Thereafter, a Panchayati was convened in the village and the Panches decided that the appellant should marry with the prosecutrix but the appellant refused and thereafter the FIR was lodged.
3. On the basis of written report (Ext. 1), the formal FIR (Ext. 3) was drawn and registered as Raniganj P.S. Case No. 150 of 2012 on 09.08.2012. During investigation, the prosecutrix was medically examined. Her statement under Section 164 Cr.P.C. was recorded. The statement of the prosecutrix under Section 164 Cr.P.C. is Ext. 2 and her medical examination report is Ext. 5. After completion of investigation, the police submitted charge- sheet vide Ext. 6 and, accordingly, the appellant and others were put on trial.
4. The prosecution produced altogether ten witnesses during trial. The prosecutrix P.W. 6 consistently supported her case as disclosed in the FIR or her statement before the Magistrate under Section 164 Cr.P.C. The cross-examination, at length, does not reveal that the prosecutrix made any exaggeration or material contradiction regarding the place of occurrence, manner of occurrence and the identity of the perpetrator of the crime.
P.W. 1 Nityanand Mandal and P.W. 5 Devki Devi are parents of the prosecutrix and they claimed that they had seen the incident and had caught the appellant inside the room.
Remaining prosecution witnesses P.W. 2 Jay Prakash is a relative of the prosecutrix and he had come on hearing the news of the incident. P.W. 3 Devendra Mandal, P.W. 4 Vidhyanand Mandal, P.W. 7 Satyadev Mandal and P.W. 8 Sudhir Mandal are witnesses who reached at the place of occurrence soon after the alarm and saw that the appellant was in clutches of the parents of the prosecutrix. The parents of the prosecutrix disclosed about the occurrence to the witnesses. In the next morning, a Panchayati was convened wherein most of the witnesses were present and they decided that appellant should marry with the prosecutrix. The appellant refused, hence, the FIR was lodged.
P.W. 9 Dr. Mantasa had examined the prosecutrix. The Doctor was of opinion that hymen of the prosecutrix was ruptured. However, no other injury was there on the private part. The vaginal swab did not show any spermatozoa either alive or dead. The age of the prosecutrix was assessed between seventeen to nineteen years. In the cross-examination, the witness admitted that there was no sign of fresh sexual assault. P.W. 10 Subhash Chandra Singh is the Investigating Officer of the case. He had fully supported the investigation done by him.
5. The defence produced two witnesses. D.W. 1 Indiranand Mandal and D.W. 2 Md. Alauddin. Both the witnesses are of formal nature who have proved Ext. A. An Informatory Petition submitted to the Sub-Divisional Officer, Araria on 04.08.2011 by Sobha Devi against the father of the prosecutrix and other prosecution witnesses wherein Sobha Devi raised apprehension that her son (appellant) would be kidnapped by the opponents for the purpose of marriage or any other untowards incident may happen including false implication in a criminal case. Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021
6. Mr. Syed Ashfaque Ahmad, learned counsel for the appellant submits that there is material contradiction as regards place of occurrence. The nephews of the father of the prosecutrix did not support about the occurrence. The garments of the appellant were not seized. There is contradiction as regards which prosecution witness came first at the house of the prosecutrix on hearing alarm. Witness Sukar Mandal has not been produced by the prosecution. Old enmity is the reason for false implication. Learned counsel for the appellant has placed reliance on two judgments of the Hon’ble Supreme Court:- Ganpat Singh Versus State of Madhya Pradesh reported in (2017) 16 SCC 353 and Sudhakar Alias Sudharasan Versus State Represented by the Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu reported in (2018) 5 SCC 435.
7. To contra, Mr. Bipin Kumar, learned counsel for the State-respondent contends that the prosecutrix of this case is consistent in her evidence throughout and she is materially corroborated by the medical evidence. Moreover, her parents have also supported the case as eyewitness and there is no reason to disbelieve them. Nothing has been brought on the record that any enmity was between the parties. Rather the prosecution witnesses have denied the suggestion of the defence that any enmity was there between the two families. No girl would make a self humiliating statement, for trivial dispute between the two families. The learned Trial Judge has correctly scrutinized the evidence of the parties before coming to a conclusion that the prosecution has successfully proved the charge against the appellant.
8. The law is settled that while appreciating the evidence of victim of sexual assault it should be treated on par with the evidence of an injured witness. The reason is simple that a girl or a woman residing in non-permissive Indian society would be reluctant even to admit that any such incident which is bound to reflect on her chastity had ever occurred. Normally, the Indian woman has tendency to conceal such offence even before her family members, much less before the public or before the police. Therefore, testimony of the prosecutrix to some extent stands on higher pedestal than that of an injured witness.
Corroboration is not an essential component to bestow credence to the evidence of victim of rape. If the Doctor who examined the victim after two days of the occurrence found her hymen ruptured but no other sign of sexual assault it would not make the prosecutrix unbelievable. Unless the totality of the circumstances appearing on the record discloses that the prosecutrix has strong motive to falsely implicate the person charged.
9. In the case of Rai Sandeep V. State (NCT of Delhi) reported in (2012) 8 SCC 21, the Hon’ble Supreme Court said that before relying on the sole testimony of the prosecutrix, the Court must be satisfied that the prosecutrix is a “sterling witness”. Para 22 of the judgment is being reproduced below:
“22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
10. P.W. 6 the prosecutrix deposed that the incident took place one and half years ago. The date was 07.08.2012, a Tuesday. In the night, she was sleeping in her house in a room. At about 12:00 midnight, the appellant lifted one flank of the door to open it and entered into her house. From his left hand pressed on her mouth and opened her lower garment and ravished her. A “Deep” was lighted inside the room and in its light she recognized the appellant. She attempted to make alarm but the appellant pressed on her mouth and did not allow her to speak or cry. However, she anyhow raised alarm and the parents from the adjoining room came and caught the appellant. Thereafter, on the alarm of parents the neighbours came. The mother and brother of the appellant also came and committed assault and got forceful release of the appellant from there. In the morning, a Panchayati was convened and the Panches decided that both be married. In the cross- examination, she said that if the appellant would have married with her no case would have been lodged.
There is nothing in the cross-examination of the witness to disbelieve her testimony. On careful scrutiny of her testimony, in my view, the prosecutrix appears to be a sterling witness as she is consistent in her statement regarding occurrence right from the starting point till the end which would depict from her cross-examination wherein there is no suggestion that she is making any contradictory statement on material particular. There is no evidence of enmity between the two family nor there is any material to suggest that the victim would make statement which would be self humiliating and against the honour of her own dignity.
11. Moreover, the prosecutrix is corroborated by the testimony of her parents who claims to have seen the occurrence and there is nothing in the cross-examination of the parents to suggest that they have exaggerated in material particular or their presence at the time of occurrence was doubtful. Since the prosecution witnesses were not confronted with their earlier statement before the police nor the attention of the investigating officer was drawn towards any such statement, the rigors of Section 145 of the Evidence Act would be applicable.
12. The cases relied upon by the learned counsel for the appellant are not of any help for the appellant in the facts and circumstances of the present case. Ganpat Singh‘s case (supra) was a case of murder trial based on circumstantial evidence which was dealt with by the Hon’ble Supreme Court. Sudhakar Alias Sudharasan‘s case (supra) was also a murder case and was regarding appreciation of evidence of interested/partisan witness.
13. There is nothing on the record to doubt that other prosecution witnesses who claims to have reached at the place of occurrence on alarm were not reliable. All these witnesses are neighbours and in normal course of conduct, it was natural that they would reach at the place of occurrence at the alarm of the parents of the prosecutrix. The lapses on the part of the Investigating Officer in non-seizure of the garments of the appellant or the prosecutrix or contradiction in testimony of the neighbours as to who reached first at the place of occurrence would not tell upon trustworthiness of the prosecutrix. For the same reason, non-examination of Sukar Mandal is not a material lapse in the prosecution case as plurality of evidence is not the requirement of law. Therefore, this Court is of the considered view that the prosecution has proved the charge against the appellant beyond all reasonable doubts.
14. The learned Trial Court has considered the mitigating and aggravating circumstances while awarding the sentence against the appellant. Therefore, this Court is not inclined to interfere with the quantum of punishment awarded by the learned Trial Judge.
15. In the result, trial court judgment is hereby affirmed and this appeal stands dismissed as devoid of any merit.