Subash Prasad Yadav vs The State of Bihar

N.N. Singh, J.—This appeal has been preferred against the judgment of conviction and order of sentence passed on 11.4.89 by Shri B.N.P. Singh, 3rd Additional Sessions Judge, Nawadah in Sessions Trial No. 8 of 1988 by which this appellant Subhash Prasad Yadav was convicted u/s 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- and in default, to undergo further rigorous imprisonment for six months. By the same judgment this appellant was acquitted of the charge u/s 323 of the Indian Penal Code and co-accused Rajan Prasad was acquitted of the charge u/s 376 of the Indian Penal Code. The prosecution case in short, as mentioned in the fardbeyan (Ext. 3) of informant Saroj Devi (P.W. 8) recorded at village Gordhowa, police station Nawadah Mufassil, was that about 20 to 22 days before recording of this F.I.R. she had come with her mother Kulwanti Devi (P.W. 9) to see her sister''s husband who was injured in a truck accident and was being treated in a clinic at Patliputra Colony, Patna and that she lived there for eight days alongwith her mother and on one Friday she went to Patna Railway Junction to catch the train for going to her native village along with her mother in which there was great rush and she could not board the train whereas her mother boarded the train and train steamed off. Further case of prosecution is that one unknown person met her at the station and on his query she told me that she wanted to go to Hilsa to meet her maternal grand mother and that man brought her to Harding Park but she could not get any bus for Hilsa and was waiting in parked Krishna bus whose driver (this appellant) drove away the man accompanying her from the Railway Station and thereafter she was told that bus could not go to Hilsa in the evening and she may stay at the residence of this appellant with his family and in the morning she may get the bus for going to Hilsa. Thereafter, she was taken to a hotel of Goraiya Tola where she was given breakfast and thereafter it was alleged that this appellant committed rape assuring her that he would marry her. It was further claimed that informant was threatened by the appellant and she was taken to Daniyawa and this appellant went to his house and brought money and came to Fatwah bazar where he purchased a Sari, Saya and Blouse for her and then again he brought her to Chanak Mohalla, Patna and kept her in the house of co-accused Rajan where she stayed for seven days and on each day rape was committed by this appellant and Rajan. Further case of the prosecution is that on 14.7.86 this appellant brought her in the bus of Krishna Travel to Nawadah, assured her that he would hire a house on rent to keep her. After all the passengers got down from the bus he started the bus again for Biharsharif and in the way after 5 K.M., at village Gordhowa the bus was stopped and she was dragged out of the bus and they went away in the bus and then the villagers arrived there and thereafter S.I. also arrived, who recorded her statement which is F.I.R. of this case.

On the basis of the F.I.R. of informant Saroj Devi Nawadah Mufassil P.S. Case No. 65 of 1986 was registered against this appellant and others and the police, after due investigation, submitted charge sheet and after cognizance and commitment, appellant Subhash Prasad Yadav and Rajan Prasad were put on trial in which this appellant was convicted as aforesaid but accused Rajan Prasad was acquitted of the charge.

The defence, as gathered from the suggestion put to P.Ws. and the statement of the appellant u/s 313 of the Cr. P.C. and the argument, was that the appellant has been falsely implicated in this case.

The prosecution examined altogether 10 witnesses in support of its case out of whom P.W. 1 is Dr. Usha Laxmi who examined prosecutrix Saroj Devi and proved her report (Ext.1) P.W. 10 is investigating officer of this case S.I. Gorakhnath Sharma, P.W. 9 is Phulwanti Devi, the mother of prosecutrix and P.W. 8 is Saroj Devi, the prosecutrix. P.W. 2 Bakhori Pandit, P.W. 3 Bsang Paswan, P.W. 4 Basudeo Yadav, P.W. 5 Babulal Prasad Yadav, P.W. 6 Savitri Devi and P.W. 7 Prakash Pandit were all declared hostile by the prosecution as they did not support the prosecution case. P.W. 9 Phulwanti Devi simply supported the statement of prosecutrix that she had gone to Patna Railway station along with P.W. 8 and that due to rush they were separated.

The Learned Counsel for the appellant contended that evidence of P.W. 1 Dr. Usha Laxmi did not support the allegation of commission of rape made by the prosecutrix. The trial court discussed her evidence in paragraphs 8 and 9 of its judgment. It was contended on behalf of the appellant that evidence of P.W. 1 did not support the prosecution story, as stated by P.W. 8 and as such it was not safe to rely on the uncorroborated statement of P.W. 8. Admittedly, the medical examination of the victim was done after much delay and as P.W. 8 was a married lady who was accustomed to sexual intercourse, non-finding any evidence of rape by P.W. 1 is not very material in the present case. It was also contended that if the sole version of the prosecutrix is believed, the circumstances show that she was a consenting party to give her company to the accused out of her own will. P.W. 1 assessed the age of P.W. 8 as between 17 to 19 years. It has been held in the case of Ranvir Singh Vs. State of M.P., that even if the prosecutrix was an women of easy virtue, she could not be raped by the accused. If she had voluntarily agreed to have sexual intercourse with the accused, she would not have complained against him.

P.W. 10 S.I. Gorakh Nath Sharma stated to have learnt that a girl has been dropped from the bus and thereafter he reached there and recorded her fardbeyan. His attention was drawn towards contradictory statement made by the hostile witnesses which he proved.

P.W. 8 Saroj Devi in her evidence supported her F.I.R. regarding allegation of rape committed by this appellant in the hospital and even thereafter. She was cross-examined at length even to the extent of objectional point, which I do not want to repeat and this much comment can be made regarding cross-examination of P.W. 8 made in paragraphs 6 and 8 which fully supports the observation of the Law Commission of India in its 46th report "raped woman have to go certain tribulation. These begins with treatment by a police and continued through a male dominated criminal justice system. Acquittal of many defacto guilty rapists adds to the sense of injustice."

The Learned Counsel for the appellant argued that the girl had opportunity to run away and to make complaint regarding rape committed by this appellant but she did not chose to do so and there are number of contradictions in her evidence and as such she could not be believed. The trial court also in its judgment in paragraphs 9, 10 and 11 pointed out certain contradictions made by P.W. 8 in her evidence. The learned Addl. P.P. submitted that certain minor contradictions were insignificant in nature and no much importance should be given to them. It was also submitted that the victim was a rustic village girl and she was not expected to make clear cut statement everytime. In 84th report, the Law Commission observed that "woman who is raped undergoes two crises, the rape and the subsequent trial". In the case of Madan Lal Vs. State of Jammu & Kashmir, it was held that "in assessing the testimonial potency of the victim''s version, human psychology and behaviourable probability must be looked into. The inherent bashfulness and the feminine tendency to conceal the outrage of masculine sexual aggression and factors which are relevant to improbabilise the hypothesis of false implication. The evidence of prosecutrix cannot be examined by picking one sentence in the cross-examination to find out whether she is a truthful witness or not. The statement made by the victim, on which appellant relied, might have been made on account of the inexperience of the young girl who was being subjected to sexual harassment and it cannot be read in isolation, bereft of what she stated just previous to the aforesaid statement." It has been held in the case of State of Punjab Vs. Gurmit Singh and Others, that the courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The court should examine the broader probabilities of a case and not get swayed by minor contradictions of insignificant discrepancies in the statement of the prosecutrix, which are not of fatal nature to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspire confidence, it must be relied upon without seeking corroboration at her statement in material particulars. If for some reason the court finds it difficult to place implicit 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 case involving sexual molestations.

The learned Addl. P.P. appearing for the State has rightly contended that absolutely no reason has been placed as to why this prosecutrix (P.W. 8) would implicate this appellant which is not known to each other from before this occurrence. Having regard to the prevailing mores of the Indian Society, it is unconceivable that a girl like P.W. 8 aged below 19 years would invent on her own a false story of sexual assault on her. It is unthinkable that in order to give a story of sexual misbehaviour she would falsely implicate the appellant.

Summing of the entire discussion made above, I think that under the circumstances, the conclusion reached by the trial court cannot be successfully assailed. The learned advocate for the appellant drew my attention towards the long pendency of this appeal. This case remained pending for 13 years. This appellant was in custody for about three years. It was submitted that no useful purpose will be served in sending this appellant to jail again. In my opinion the ends of justice would be satisfied if the sentence of the appellant is reduced to the period already undergone and a fine of Rs. 5000/- (Rs. five thousand) and in default, to undergo rigorous imprisonment for one year. With this modification in sentence, this appeal is dismissed. The appellant is directed to deposit the fine within four months failing which the trial court will take step for arrest of this appellant to serve out sentence for realisation of fine.