JUDGMENT
1. This criminal appeal preferred by the appellant-Bandu Kawadu Thakre, is directed against the judgment and order passed by 3rd Addl. Sessions Judge, Wardha, on 25th May, 1990, convicting appellant/accused for the offence punishable under Section 376 of I.P.C. and sentencing him to suffer rigorous imprisonment for the period of 5 years and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for nine months. It has been further directed that in case of recovery of fine amount from the accused, an amount of Rs. 4,000/-be paid to the complainant as compensation.
2. On the private complaint presented by the complainant Ku. Shashikala d/o Shankar Zade (P.W. 1), for the offence punishable under Sections 376 and 417 of I.P.C., the Judicial Magistrate, First Class, Wardha, took the cognizance and the case being exclusively triable by the Sessions Court, the same was committed to the Sessions Court for trial. The case was registered as Sessions Trial Number 103(A)/87.
3. The complainant/prosecutrix and the appellant/accused-Bandu are the residents of the village Waigaon, District Wardha. They belong to same caste i.e. Mali. Their houses are close to each other. According to the complainant, her father is a poor villager, while accused comes from a rich family. The complainant further stated that the accused established thick relations with the family of the complaintant and allured her by saying that he is going to marry her. As per the school record, the date of birth of the complainant is 15th March, 1969.
4. During the visists to the complainant’s house, the accused used to touch the complainant’s person – Thereafter the accused started kissing and touching her breast to which the complainant resented. Accused told her that he is going to marry her and, therefore, she should not object or resist. As the result of the assurance of marriage, the accused started sexual intercourse with the complainant sometime before Dasahara of 1984. Because of the sexual intercourse, the complainant conceived and became pregnant in the month of January, 1985. The complainant and her parents persuaded the accused to marry the complainant, but the accused avoided. Thereafter the father of the complainant lodged a report to the out-post, Waigaon. No action being taken by the Police the complainant issued a notice through Shri Deshmukh, Advocate, to the accused directing him to marry her. The accused refused to accept the notice. Father of the accused settled the marriage of the accused with another girl by name Sunita d/o Chindhuji Joge – the respondent No. 2 of Kawali, district Amravati, and, therefore, the complainant sent registered notice to the father of the said girl directing him not to marry his daughter with the accused. In spite of the notice, the marriage was solemnized. The complainant again made a report to the Police Station, Deoli, on 25th July, 1985. The Police took no cognizance and, therefore, the private complaint was filed in the Court of Judicial Magistrate, First Class, Wardha.
5. The complainant gave birth to a female child on 10th September, 98. The private complaint cast was instituted in the Court of Judicial Magistrate, First Class, Wardha, on 18th March, 1986.
6. The learned trial Judge framed the charge for the offence punishable under Section 376 of the Indian Penal Code on 7-4-1990 at Exh. 13. The accused pleaded not guilty to the charge and claimed to be tried.
7. To substantitate the charge against the appellant/accused, the complainant Ku. Shashikala prosecutrix examined herself as P. 1 and her father Shankar Zade as P.W. 2. The defence of the accused is of denial. According to the appellant/accused, he is falsely implicated in the present case. The learned trial Judge, placing reliance on the observations of the Hon’ble Supreme Court in the cases of Rafiq v. State of U.P. (AIR 1981 SC 559 : (1980 Cri LJ 1344) and Gurucharansingh v. State of Haryana, , found the testimony of the complainant trustworthy and convicted and sentenced the appellant/accused.
8. With the assistance of Shri Renu, the learned counsel for the appellant/accused, and Shri Mishra, the learned A.P.P., perused the evidnce, judgment and order of the learned trial Judge. Shri Renu, the learned counsel for the appellant/accused, vehemently argued that the evidence of the complainant Ku. Shashikala is not at all credible as there is no corroboration whatsoever. There is an inordinate delay in filing the complain in the Court of Judicial Magistrate, First Class, Wardha. Though she alleged that the appellant/accused committed sexual intercourse prior to Dasahara of 1984, there is no whisper in the evidence that even after Dasahara festival, the appellant/accused continued to have sexual intercourse with the complainant. According to Almanac, Dasahara festival of 1984 was on Thursday the 4th Oct. The complainant delivered the female child on 10th Sept. 1985. Considering various documents viz. notice to the complainant, copy of which is at Exh. 26, dated 25th June, 1985, another notice of the same date to Chindhu Joge, according to the learned counsel there is inordinate delay in disclosing any illicit relation with the appellant-accused. Shri Renu further submitted that there is no whisper in her statement that at the earliest/moment, the complainant had disclosed the sexual relations and her pregnancy, either to her elder and yonger sisters or to any other member of her family including her parents. Besides this, it has been rightly pointed out by the learned counsel that no place has been indicated of occurrence either in the complaint or in the deposition, where the alleged sexual intercourse had taken place. Further it is rightly stated that if really she was pregnant and the appellant/accused was responsible for that, immediately after noticing the pregnancy of the complainant, it would have spread as a rumour in the locality to the effect that the appellant/accused is responsible for her pregnancy. No villager has been examined to show that the complainant had at any time disclosed about her sexual relations with the appellant/accused and the pregnancy.
9. Charge of rape is very easy to make an very difficult one to refute. Therefore, it is a very settled rule or practice and prudence in India that in rape cases, the evidence of the complainant/prosecutrix must be corroborated. However, not in each case. It depends on the particular facts of each case. The nature and extent of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. The kind of corroboration required in a case of rape is an independent evidence i.e. to say the evidence of some witnesses other than the girl herself. The independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused with it by affirming in some material particulars of the testimony of the complainant with the accused who committed the crime. Similarly, corroboration need not be direct evidence that the accused committed offence. It is sufficient that circumstantial evidence shown that the accused has some connection with the crime.
10. In a case of rape the honour and reputation of the girl/woman being at stake, no woman will come forward to rope an innoncent man other than a person who committed rape or sexual intercourse with her. When a woman is ravished, what is inflicted is not merely physical injury, but “the deep sense of deathless shame”. However, it has been depicted by the world repute litterateur Shakespear that ‘Frailty, thy name is woman”. Similarly, our tenets say :
“Streeya charithram purushasya Bhagyam Na Devo Janati Kuto Manushya :
(Woman’s character (personal deportment) and man’s fortune (favour by luck) are not even known to the God, what of men then : ).
Under the circumstance, it is difficult to fathom the working of the mind of the woman. As it is stated earlier that sexual offence is very easy to allege and diffilcut to refute, it is expected that immediately after the incident of molestation or rape/sexual inter-course, a report to the Police is lodged. The report to the Police in a criminal case is an extremely vital and valuable piece of evidence. Immediate conduct is also important while deciding the case of molestation or rape. If a statement or disclosure is made by the ravished girl either to the members of her family or others, it is an evidence of conduct as admissible as the corroboration by Section 8, illustration (j) of the Evidence Act and under Section 157 of the Act. In all cases of rape, importance is attached to the subsequent conduct of the complainant. Whether she makes the charge promptly or not is always relevant. Delay in prosecution or failure to make a complaint at the earliest possible opportunity, weakens the case of the complainant.
11. In the instant case, no doubt, the victim of the offence or rape appears to be young, innocent girl of tender age. Her evidence definately would have carried some weight if there would have been any disclosure immediately after the occurrence or within the reasonable time thereafter. In the instant case, admittedly, there is no immediate disclosure about the sexual acts by the appellant/accused.
12. From the evidence it is revealed that there being the negotations of marriage with the appellant/accused, no report as lodged with the police. However, it is not specifically stated that the negotiations of marriage were going on either before the Dasahara festival of 1984 or after the pregnancy was detected. Similarly, it is difficult to digest that the negotiations of marriage were going on with the appellant/accused i.e. the young boy of 22 years at the relevant time. There is no whisper in the evidence either of the prosecutrix or her father-Shankar that at any time, the relatives of the complainant and the accused were informed to the effect of marriage and they were persuaded for the marriage of the appellant/accused with the complainant. Shri Renu, the learned counsel for the appellant/accused, has rightly submitted that probably there may be persuasion for the marriage when the complainant was found pregnant taking the benefit of the caste and neighbourhood. After detecting the pregnancy, the appellant/accused must have refused to marry the complainant. The story appears to be more probable and convincing.
13. In the instant case, the only circumstance as a corroborative piece of evidence is delivery of female child. The appellant/accused denied the sexual relations and conseqeuntly the paternity of the child. Under the circumstance, there must have been a blood grouping test of male and female both. From the certificate issued by the doctor regarding the delivery, the parternity cannot be established, was not known. If the coitus as alleged is before Dasahara of 1984, which fell on 4th Oct, 1984 and the child is delivered on 10th Sept. 1985, the birth of child is after 11 months. So the period is post-maturity period. Similarly there is no test knowon as NA test to establish the paternity and thereby to confirm the parent-hood. If there would have been such an evidence, some sanctity would have been attached to the evidence of prosecutrix. In the absence of any such evidence, considering the facts and circumstances of this case, it is difficult to believe that the appellant/accused had committed rape or sexual intercourse with the complainant-Shashikala and because of that, she conceived and delivered the child.
14. In the case of rape/sexual intercourse, examination of the accused by doctor is also important to ascertain the physical capacity of the alleged rapist to commit the sexual intercourse. A person suffering from no incapacity whatsoever, may find it impossible to have an intercourse. Therefore, in the cases of rape, the examination of the accused and medical evidence conclusively establishes that the person is potent for all the intents and purposes of committing sexual intercourse. As the Police took no cognizance in this case, no such examination is made and thereby no evidence is on record. Besides this, in the cases of rape and where the child is delivered, the examination of the rapist is essential and important to ascertain whether a person can be sterile without being impotent and can perform sexual act without being able to impregnate or get conceived. In this direction also, in such cases, the medical examination collecting the semen is necessary. However, such evidence is not also available in this case.
15. Giving conscious thought to the facts and circumstances of the case and there being no cogent and reliable evidence except the bare words of the complainant and her father and that too after about 7 to 8 months, no reliance can be placed on the story of the complainant. If such a belated statements are believed or given weight, nobody will be safe. Therefore, the evidence of the prosecutrix is totally rejected. Thus the appellant/accused deserves to be acquitted.
16. In the result, the instant appeal is allowed. Conviction and sentence awarded by the learned trial Court in Sessions Trial No. 103(A)/87 dated 25-5-1990, are set aside. The appellant/accused is acquitted of the offence punishable under Section 376 of I.P.C. His bail bond stands cancelled. If the fine is paid, it be refunded to the accused. If the amount of Rs. 4,000/- out of the fine amount is paid to the prosecutrix as per the directions of the lower Court, the appellant/accused is at liberty to recover the same.
17. Appeal allowed.