Mahendra Mahton vs State of Bihar

B.N.P. Singh, J.—Allegedly Rajo Devi, a married lady aged about 20 years, was scrapping grass in the field when at about 5 p.m. Mahendra Mahto, the Appellant, came from north side holding an axe in the hand, and before she could raise alarm, having thrashed her on the ground, made her naked and committed sexual assault on her. When she wanted to raise alarm, he gagged her mouth and holding threat, accomplished commission of sexual assault on her while she was carrying pregnancy of about five months and with these accusations, fardbeyan of Rajo Devi was recorded at 22.15 hours at the Police Station on 29th July, 1991, pursuant to which investigation followed. The Police Officer who took investigation recorded statement of witnesses including that of the prosecutor, got prosecutor clinically examined by the doctor and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that followed the State examined six witnesses including the prosecutor, other witnesses and the doctor.

The defence of the Appellant was that the prosecutor was a woman of easy virtue who was visited by one Lallu Mahto and since the Appellant had reprimanded her, hence his false implication.

Reiterating narrations made by her in the fardbeyan, the prosecutor (P.W. 5) states at trial that on the day of incident at about 5 p.m., while she was scrapping grass in the field, the Appellant came holding an axe and having made her naked, committed sexual assault on her holding threat to execute her killing, in case she raised alarm. She stated that she was carrying pregnancy for five months for which she had violent pain in her abdomen after commission of sexual assault by the Appellant. She took recourse to public authority and set the Police in motion, pursuant to which she was also medically examined by the doctor.

Jageshwar Mahto (P.W. 1) stated to have rushed to the place of occurrence, as he too was scrapping grass in the nearby field. Though the Appellant was chased, but he could not be apprehended. Narration of woes meted out to her by the Appellant was disclosed by the prosecutor to him.

Adverting to the evidence of Dr. Kusum Prasad (P.W. 6), the doctor found the prosecutor about 18-19 years old. She was pregnant about six months and about rape, the doctor had opined that it was difficult to give opinion as the vagina was parus. The doctor, however, stated to have not noticed injury either on the knee or on the back side of the prosecutor. There was no injury on private part also.

Evidence of Dasso Mahto (P.W. 2), Phulo Devi (P.W. 3) and Bhushan Mahto (P.W. 4) may also be referred to as these witnesses had turned volte face to the State lending no assurance to the prosecution allegation, and as, usual, their attentions had been drawn by the State Counsel to their previous statements made before the Police.

Various submissions were canvassed at Bar to persuade the Court to disbelieve the prosecutor about commission of sexual assault on her. Non-examination of the husband of the prosecutor to whom first hand information was allegedly given by the prosecutor was also highlighted at Bar and it is urged with all stress that it would appear from the testimony of none else but the prosecutor that husband advised her to act in terms of dictates of his elder brother, and hence false implication of the Appellant. Submission made at Bar was that though a number of persons rushed to the place of occurrence from the nearby field on alarm raised by the prosecutor, none has come to lend assurance to the assertions made by her, and barring statement of elder brother of the husband of the prosecutor, no independent witness was examined against whom possibly no finger could have been raised, and on these premises it is urged that in this case only family member of the prosecutor was examined entirely to the exclusion of independent witness. There being no corroboration from the medical testimony of the doctor was another plank of argument on which finding recorded by the trial court is assailed by the learned Counsel for the Appellant. Non examination of the Investigating Officer, it is stated at Bar, leaves many questions unanswered and has also prejudiced the Appellant.

Contrary to the assertions made by the prosecutor about she carrying pregnancy for about five months at the material time of incident, suggestions were given to her that she did not carry pregnancy and assertions made by her was concocted. Apart from the prosecutor, there has been statement of even Jageshwar Mahto (P.W. 1) about Rajo Devi carrying pregnancy when she was sexually abused by the Appellant and that apart, a positive finding was recorded by Dr. Kusum Prasad (P.W. 6) about prosecutor carrying pregnancy about six months when she was clinically examined by her on 13.7.1991 and hence assertions made by the prosecution on this score has substantially been corroborated from other sources also including that of the doctor.

True it is that, as the prosecutor states, some persons from the nearby field rushed to the place of occurrence on alarm raised by her, but some of them, as has been noticed, had turned volte face to the State. However, non-examination of other witnesses who allegedly rushed to the place of occurrence after a call by her, is not a serious infirmity in the prosecution case, as they are not suggested to be witnesses of the commission of offence. Statement of the prosecutor which did not suffer blemishes inspires confidence and it does not stand to reason why she would falsely implicate the Appellant for no good reason. Her statement remained virtually unchallenged in the cross examination, and that apart, it has been corroborated by the brother of her husband to whom prosecutor immediately narrated the story about the incident. The mere fact that no injury was found either on the person or the private part of the prosecutor would not belie the statement of the prosecutor. Similarly non rupture of hymen too would not belie her testimony particularly when it is noticed that in the cross-examination of the prosecutor nothing was brought out to doubt the veracity to suggest as to why she would implicate the Appellant falsely.

Now coming to the medical evidence of the doctor, since the prosecutor was pregnant for about six months and the vagina was parus, it would be difficult for her to give opinion about commission of recent sexual assault on her. This opinion of the doctor cannot, however, throw out otherwise cogent and trustworthy evidence of the prosecutor. In a case where the prosecutor was otherwise reliable, absence of corroboration from other sources including that of the doctor does not vitiate the finding of guilt recorded against the Appellant and without multiplying decisions, I may refer to some of the observations made by the Apex Court in the case reported in State of Punjab Vs. Gurmit Singh and Others,

... 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 humiliating 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 prosecutor 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 reliable. Seeking corroboration 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 prosecutor 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 leveled 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 an injured witness and to an extent is even more reliable. Just as witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is 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 corroboration 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 prosecutor is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount to suspicion, treating 1 her as if she were an accomplice...

Though suggestions were given to the prosecutor that she was a woman of easy virtue and one Lallu Prasad had j been usually visiting her, for which she was reprimanded by the Appellant, however, there has been no defence plea of the accused in course of his examination u/s 313 of the Code of Criminal Procedure that the prosecutor had any grudge or reason to falsely implicate the Appellant in such heinous crime for which she herself was ravished and her honors was at stake. Time without numbers, the Courts have reiterated that the cases associated with commission of sexual assault must be considered with utmost senility. The broad probabilities of a case should be examined by the Courts and the Courts should not get swayed by minor Contradictions or insignificant discrepancies in the statement of the prosecutor which are not of vital nature to suspect otherwise reliable prosecution case. The testimony of the prosecutor has to be Appreciated in the background of that case and the Courts are to be sensitive while dealing with cases involving sexual molestation. Absence of injuries, though was alleged by the prosecutor, on her person has been noticed by the doctor would not negative the bona fide of her assertion. Even defence of the Appellant was imaginary and hypothetical for which there has been no good evidence on the record. The Appellant had suffered conviction u/s 376 IPC and has been sentenced to suffer rigorous imprisonment for a term of seven years by the trial Court. He happens to be in custody since 16.6.2001. Prosecution was launched against the Appellant in the year 1991 and since then about a decade has elapsed. In the circumstances while upholding conviction of the Appellant which appears to be well bonfied, sentence is reduced to five years and with this modification in sentence, this appeal is dismissed.