JUDGMENT
Arun Mishra, J.
1. Ramrati, the prosecutrix was subjected to rape on September 22, 1988 at about 10.00 a.m. The appellant having found guilty by the trial Court for commission of offence has been convicted Under Section 376, IPC. He has been sentenced to undergo seven years’ rigorous imprisonment. The present appeal is against his conviction and sentence.
2. The facts leading to prosecution, in brief, are that on September 22, 1988 when prosecutrix was going to answer the call of nature, she met with accused, who asked her to accompnay to Khudiya (Agriculturist’s out-house). Accused forcibly, at the point of knife, dragged her to nearby Khudiya and committed forcible sexual intercourse with her. Her brother-in-law Komal (PW 2) came to the spot, saw the accused running towards public road. She had narrated the incident to Komal. Tulsiram (PW 3) was in the agricultural field. The incident was also narrated to him. Thereafter, Tulsiram visited the house of the accused but did not find him in the house. The report of incident was lodged on September 23, 1988, the next day at 13.00 hours. The prosecutrix was referred for medical examination. Dr. (Smt.) Mamta Mishra (PW 9) found it difficult to give definite opinion regarding rape as the prosecutrix is a married woman and habitual to sexual intercourse. Her clothes were seized so her vaginal smear slides were prepared as mentioned in the medical report (Ex. P. 12). The accused was medically examined. Medical examination report (Ex. P11) discloses that accused was found capable of sexual intercourse. The clothes underwear of the accused and vaginal smear slides petticoat of the prosecutrix and seminal slides were sent to chemical examiner for chemical analysis to Forensic Science Laboratory, Report (Ex. P. 13) indicates that presence of human spermatozooa and semen was confirmed on all the Articles A, B, C, D, i.e., petticoat, underwear, slide of the accused and vaginal smear slide obtained from the prosecutrix.
The accused abjured the guilt and contended that he was falsely implicated on account of previous enmity, the husband of the prosecutrix had obtained Rs. 2000/- for obtaining Patta and had not returned. On the date of incident he was not in the house and was working with contractor Chhotelal at Mungawali, Yasin Khan (DW 2) and Roop Singh (DW 3) had accompanied him to the place of work.
3. Learned counsel for the appellant has assailed the conviction of the appellant on the ground that definite evidence has not been led in the case. He has submitted that by the side of public road no sexual intercourse could be committed. He submitted that the accused has been falsely implicated. Alternatively, he has submitted that it was a case of consent and as Komal had reached owing to which a case of rape has been concocted.
4. Learned counsel for the State has submitted that from the version of prosecutrix it is apparent that she is a truthful witness. There is no imbalancement or concoction. The minor contradiction is bound to be found in the evidence. In the case of rape the deposition of the prosecutrix is entitled to great weight and until and unless there are inherent improbabilities the same does not require corroboration and in his submission the conviction of the appellant calls for no interference in the present appeal by this Court.
5. The prosecution has examined in all nine witnesses. Ramratibai the prosecutrix (PW 1), her brother-in-law Komal (PW2) and Tulsiram, husband of the prosecutrix (PW 3) have been examined to support the case of commission of offence. Learned counsel has submitted that it is a case of false implication owing to enmity. What. was that enmity? The element of the enmity is to be examined first and also is to be seen whether it was such so as to concoct case of commission of rape with the prosecutrix. Ramratibai (PW 1) has stated that there was some dispute of land of Komal with the accused and husband of the prosecutrix used to help Komal. Komal has been examined as PW 2. He has denied that there was any dispute with respect to the accused and there was no dispute as to lease of the land. Tulsiram (PW 3) husband of the prosecutrix has stated in para-4 on suggestion put by the defence that he knew Basore of Beena whose land is in his village near the road and one Mathua had obtained the land for sowing the crop. Thereafter Basore had given the land to the accused on sharing it. He has denied further suggestion that he was in dispute with the accused. Merely that some body’s land was given to the accused on lease for cultivation it cannot be held that the complainant was harbouring enmity. It was not shown that the land was ever cultivated by the husband of the prosecutrix or, her brother-in-law Komal. Tulsiram has further denied the suggestion that he wanted, to obtain the adjoining Khudiya of the accused. For obtaining Khudiya, i.e., agricultural out-house, it is not understandable that a case of rape would be concocted, as has been alleged.
6. The accused in his statement under Section 313, Cr. P.C. has taken the defence that Tulsiram had obtained a sum of Rs. 2000/- from the accused for obtaining a Patta and on demand being made by the accused dispute arose. But this suggestion has not been put to Tulsiram in his cross-examination, to whom allegedly the amount was given, by the accused. Cross-examination is not the matter of procedure but is a matter of substance, a party is required to put his own case, in the cross-exarnination of a witness, in order to impeach the witness, it is necessary to obtain an explanation. It appears that different suggestions were put to different witnesses. There was no consistent defence as to the fact of enmity which goes to show that there was no such enmity which was tried to be made out with the accused nor it is shown that Tulsiram was a person to whom Rs. 2000/- would be given for obtaining Patta by the accused. It has not been shown, how Tulsiram could have obtained Patta for the accused. If there was dispute as to the land then the statement of accused Under Section 313, Cr. P.C. is wholly improbable. In case if dispute was pending with accused, there was no occasion to give Rs. 2000/- for obtaining Patta to the husband of the prosecutrix. Thus, defence raised as to the false implication owing to enmity has no legs to stand.
7. The defence has also led evidence of Sarman Singh (DW 1). He has given a different version in evidence. He has spoken as to loan transaction between Tulsiram and Komalchand which is not the case set up in the cross-examination of prosecution witnesses nor told by accused in his statement Under Section 313, Cr. P.C. Roop Singh and Yasin Khan have been examined to prove the plea of alibi but in the evidence of Roop Singh it is clear that he has also not substantiated the plea taken by the accused that Roop Singh and Yasin Khan had gone with him to the contractor. Roop Singh has not stated that he was met with contractor. Yasin Khan (DW 2) has stated that he had not gone to Mungawali on the date of incident. He does not appear to be a truthful, witness. He has not stated that what was the purpose of going alongwith the accused to contractor. The contractor has not been examined. Moreover, that stand is falsified by the prosecution evidence which is reliable.
8. Now question arises whether the prosecutrix is reliable or her depositipn requires corrobqration. In the case of State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : (1996 Cri LJ 1728) it has been held by the Supreme Court that to ask for corroboration to deposition of the prosecutrix amounts to adding insult to injury. The prosecutrix is not to be put on trial, if her version is otherwise reliable it calls for no independent corroboration. Now it is to be examined in view of the aforesaid dictum of the Apex Court whether version of the prosecutrix is reliable or there are any improbabilities so as to warrant independent corroboration. Prosecutrix Ramratibai (PW 1) has deposed that she was going to answer the call of nature at about 10.00 a.m. She met the accused. She had gone to outskirt, as is apparent from the Map Ex. P 2. that after the place of incident there are no other outhouses. Taking the advantage of the out skirt as per prosecution version, the accused at the point of knife, asked her to accompany to an agricultural out-house, used for storing fodder. When she refused to accompany the accused, knife was shown to her, and accused caught hold of her and dragged her to Khudiya, the out-house and committed sexual intercourse. She cried, on hearing that, her brother-in-law Komal (PW 2) who was sitting in a nearby field, came. The accused ran away. Immediately the prosecutrix narrated the incident to Komal. Thereafter, she went to her husband, who was in the agricultural field and narrated the incident to him. Next day the report (Ex. P. 1) was lodged in the police station. Learned counsel for the appellant has submitted that the prosecutrix has stated that there was a way in nearby and it is not possible to have committed sexual intercourse near thoroughfare. The accused had taken the prosecutrix inside the out-house and there the offence was committed and it was a village and merely by existence of Pathway it cannot be presumed that it was used on the relevant time. No suggestion was made in the cross-examination of the prosecutrix that path was being used by passer by. No such suggestion was made to any other witness examined by the prosecution, viz., Komal and Tulsiram. Learned counsel has further submitted that there was a well at about 50 to 60 steps away which was a public well and used by public at large. There is variance as to the distance of this well in the deposition of the prosecution witnesses. The trial Court has found that it was situated around 60 meters away whereas Investigating Officer has stated that it was 300 meters away. It has not been, suggested in the cross-examination, that there was any person taking water from the well. No such suggestion wag made. Presence of any person on the well was not suggested in the cross-examination of the prosecutrix. Mere by existence of well the story of rape is not improbablised. The prosecutrix has clearly stated that she was taken inside the outhouse. They are residing separately in village house. Nearby to disputed out-house out-house of accused is situated. This outhouse was used for storing straw and Komal used to reside in the same. She has stated that she raised hue and cry when accused had caught hold of her hand. She has clearly deposed that when she raised cry except Komal, her brother-in-law, no one had come to the spot. The prosecutrix has deposed that while she was going to answer the call of nature, she had already seen that her brother-in-law was sitting near the neem tree at some distance. The prosecutrix version is truthful and inspires confidence and is corroborated by the report of the chemcial analysis. Presence of semen on her Sari as well as on the under-wear of the accused and the vaginal smear slide also corroborates the version of the prosecutrix. Komal though a relative being her brother-in-law, has also substantially corroborated the version of the prosecutrix. On hearing her cry Komal had reached on the spot and had seen the accused running away from the spot. The incident was narrated forthwith by the prosecutrix not only to her brother-in-law but her subsequent conduct also shows that she went to her husband Tulsiram (PW 3) who was working in the agricultural field. Tulsiram has deposed that incident was narrated by the prosecutrix to him and also that hearing cry Komal had reached on the spot and prosecutrix had come weeping. Thereafter, conduct of Tulsiram, who has deposed that hearing of the incident, he went to house of the accused but accused was not found in the house. In the deposition of Tulsiram it is mentioned that they had gone to lodge the report the same day to the Station House Officer but they were told that the Station House Officer is not present, he should come the next day to lodge the report, whereas the prosecutrix has stated that report was lodged the next day. It was not put in the cross-examination of the prosecutrix whether she had gone to lodge report also in the evening. Even this contradiction is taken into consideration, it is not very material as the FIR was lodged the very next day. Map of the spot was prepared by Durjanlal (PW 5), case was registered by Premnarayan (PW 6) vide Ex. P. 3 Dr. Mamta Mishra (PW 9) has deposed to and has proved the medical report and Dr. K.K. Shrivastava (PW 8) has deposed that, the accused was capable of sexual intercourse. Sudama Prasad Dubey (PW 7) supported the investigation made by him.
9. Learned counsel for the appellant has relied upon decision in Chandu Ganpat v. State, 1959 MPLJ 538. In the said case, facts were different. Prosecutrix had alleged that accused committed rape while he was going in cart from one village to another, he stopped the cart on the way and committed rape by the side of the track in the presence of two persons who happened to pass at that time by the track and remonstrated him for the act. The entire story was considered to be inconceivable and was rejected. In the instant case, rape was not committed in open place but the prosecutrix was taken to the out-house. No such suggestion was made in the cross-examination. In the said case, there was presence of two persons. This Court relied on the decision in the case of Ramdas v. State of West Bengal, AIR 1954 SC 711 : (1954 Cri LJ 1793) in which it was observed that the story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted. In the instant, case, presence of none else had been suggested either by the prosecution or by the defence nor by the prosecutrix nor by the accused and only after raising hue and cry by the prosecutrix, Komal, her brother-in-law had reached. The other decision relied on by the learned counsel for the appellant is Babulal Harnarain v. State of M.P., 1994 MPLJ 489 wherein the facts indicated that two married women were ravished. The Court observed that when there is even semblance of exaggeration or artificiality in the evidence of prosecutrix in a case of rape, it is proper to look for corroboration to the testimony of the prosecutrix before she is relied upon. Corroboration of the evidence of an adult prosecutrix of sex offence may be insisted upon if her evidence is found to be infirm or not trustworthy or “probabilities factor”. There is no quarrel to the said propp-sitipn, but, in the instant case, I am of the opinion that there is no infirmity or artificiality in the version of the prosecutrix.
10. The other decision relied upon by the learned counsel for the appellant is Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096). In the said case, it was observed that corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation, Or when the ‘probabilities factor’ is found to be out of tune. In the instant case, prosecutrix was not found in a compromising position. It is not the case of Komal nor of the prosecutrix that she was found in the compromising position nor such suggestion was made to the prosecution witnesses. Moreover, probability goes to show that offence was committed and accused committed forcible sexual intercourse with the prosecutrix.
11. Learned counsel for the appellant relied on yet another case, Suresh N. Bhusare v. State of Maharashtra, AIR 1998 SC 3131 : (1998 Cri LJ 4559). In the said case, prosecutrix was in an advance stage of pregnancy and had gone to the shop of accused for purchasing match box. There was inconsistency of the versin in the FIR that she was dragged inside and had in fact received some scratches, there was delay in lodging the FIR, the circumstances that some beads of broken necklace of the prosecutrix were found in the house of accused was not believed as it was considered unnatural that even after four days, the accused would have allowed the beads to remain there, the case bf rape was not proved and the deposition of the prosecutrix was not found true by the Apex Court. Facts were different so also the ratio of the case and this case does not help the appellant.
12. In the result, I find no substance in the appeal.
13. Learned counsel for the appellant submitted that the incident occurred in the year 1988. Twelve years have passed. Sentence of seven years’ imprisonment, in the circumstances, may be reduced. Accused has already undergone to mental agony for so many years. So sentence 6f seven years, imprisonment for the offence of rape Under Section 376, IPC may be reduced. However, considering the facts and circumstances of the present case, with a view to grant com-pensation to the prosecutrix for sexual assault which she suffered, and only with this view, it is considered expedient to reduce the sentence and impose the fine. The appellant is sentenced to rigorous imprisonment of 5 years and a fine of Rs. 10,000/-, out of which, Rs. 9,000/- shall be paid to the prosecutrix by way of compensation. In default of payment of fine, in 4 months the appellant shall undergo the sentence as already awarded by the trial Court and this reduction in sentence shall be ceased to be operative.