Heard learned counsel for the appellant, learned A.G.A. and perused the record.
As per prosecution case on 4/5.07.1995 when the prosecutrix was sleeping in her house, at about 3.00 a.m. the appellant had trespassed the house of the complainant and tried to commit rape upon her. The said attempt to rape was resisted by the prosecutrix upon which the accused had caused injuries by knife and upon raising alarm, he had run away. Upon alarm, her mother Smt. Ratana and neighbours Murli had come. Upon an enquiry, she has stated that the accused had attempted to commit rape on her and had run away after causing injury by knife. The report was lodged on the same day at 12.40 hours for the offence punishable under Sections 452, 376/511 and 324 I.P.C. After investigation the charge sheet was filed for the said offences. The appellant was charged for the said offences and he had denied the charges and claimed to face trial.
Victim has been examined as PW-1, who has stated that when she was sleeping in her house, the appellant had entered her house at about 3-4 a.m. and attempted to open the 'Nara' of her shalwar. Upon awaking she caught hold the appellant and she raised alarm upon which he had caused injuries to her by knife. Upon her alarm, her mother, brother Lallu Ram had come and the villagers Ram Bhoj and Murli had also come. The complainant has proved the report as Ext. Ka-1 and has stated that the investigating officer had come on the spot and prepared the memo of taking the lantern into his possession, which has been proved as Ext. Ka-2. It is relevant to mention that before any cross examination could be conducted with this witness, this witness has died.
Jagdish PW-2 is the father of prosecutrix , who has stated that he had gone to village Madnapur on the date of incident and the incident was narrated by his daughter and he had gone to lodge report, which was got scribed by Rakesh.
Lallu Ram P.W. 3 is the brother of the prosecutrix, who has stated that upon alarm, he had reached the spot from his house and he had seen the accused running away from the spot. Murli, Ram Lal and Chhatrapal had come and they tried to catch hold the accused but because he was having knife in his hand, therefore, he was not followed. He has proved the memo of taking torch into possession as Ext. Ka-3.
Smt. Ratana P.W. 4 is the mother of the victim, who has stated that she was sleeping in her house and her daughter was sleeping in the courtyard. At about 3.00 a.m. upon alarm of her daughter, she had seen that accused had caught hold her daughter and on her resistance, he had inflicted injury by knife and after that he had run away from the spot. So many persons had come, who had seen the accused in the light of torch.
Deputy Superintendent of Police Bhanu Pratap Singh P.W. 5 is the investigating officer of the case, who has proved the investigation and the formal papers of the prosecution. Site plan has been proved as Ext. Ka-4. The memo of lantern Ext. Ka-5, the charge sheet as Ext. Ka-6, Chik F.I.R. as Ext. Ka-7 and the copy of G.D. have been proved as Ext. Ka-8.
Dr. V.K.Agarwal P.W. 6 has proved the medical examination of the victim and had found three injuries on the body of the victim. The medical examination report has been proved as Ext. Ka-9. After the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C.
After appreciation of evidence on record, learned court below came to the conclusion that the appellant is guilty for the offences punishable under Sections 376/ 511, 452 and 324 I.P.C. and accordingly convicted him.
Learned counsel for the appellant has submitted that the appellant has been falsely implicated. It has also been submitted that the appellant is the real Bhanja of the father of the victim and due to enmity with the village Pradhan, he has been falsely implicated. It has also been submitted that there is no injury on the private part and the said injury on the body are simple in nature. It has also been submitted that the case under Sections 376/511 I.P.C. is not made out. It is further submitted that the appellant has remained in jail for about one and half years, therefore, lenient view may be taken. It has been submitted that no independent witness of the fact has been examined and because the appellant did not have any opportunity to cross examine the prosecutrix, who had died, therefore, her statement can not be read in evidence. It has also been submitted that there is no corroboration of the fact that he had attempted to commit rape with the victim, therefore, offences punishable under Section 376/511 I.P.C. is not made out.
Learned A.G.A. has defended the impugned order and has submitted that the learned trial court has rightly convicted the appellant.
The appellant has been charged for the offences punishable under Sections 452, 376 read with 511 and 324 I.P.C. It is true that after the examination-in-chief, the victim had died, therefore, no cross-examination has been conducted with her. It is settled law that if any witness has been examined in the court but no cross examination has been done due to death, then his statement requires careful scrutiny.
Legal position regarding a witness whose examination-in-chief has been recorded but before cross examination could be conducted, if he has died then what shall be the evidentiary value of such witness may be summarized as follows:
In Tinku Ram vs. State passed in Criminal Appeal No. 841 of 2011 decided on 14.9.2011, Delhi High Court has held as under:
"The question which arises is what then is the correct position regarding the deposition of PW-7. We are conscious that Section 138 of the Evidence Act, 1872 mandates that to constitute evidence, the testimony of each witness has to be subjected to cross examination. The provision seemingly admits of no exception; yet courts have recognized them in exceptional situations. "Sarkar on Evidence" at page 2170, states that:
"The evidence of a witness who could not be subjected to cross-examination due to his death before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of case. [Food Inspector v. James N.T., 1998 Cri LJ 3494, 3497 (Ker)]. If the examination is substantially complete and the witness is prevented by death, sickness or other causes (mentioned in s 33) from finishing his testimony, it ought not to be rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected [Diwan v. R, A 1933 L 561]. Deposition of a witness whose cross-examination became impossible can be treated as evidence and the court should carefully see whether there are indications that by a completed cross-examination the testimony was likely to be seriously shaken or his good faith to be successfully impeached [Horil v. Rajab, A 1936 P 34]. In a divorce case, the cross-examination of a witness for the wife who is the uncle of the husband was interrupted to enable the witness to effect a compromise. No compromise was effected. The witness did not turn up thereafter. The husband did not take steps to compel the witness to appear for further cross-examination. The reading of the evidence of this witness cannot be objected, on the ground that the cross-examination is not completed [R v. S, A 1984 (NOC) 145 All"
In Horilal v. State of U.P., 1970 [2] SCJ 223, it was held that where a witness died after his evidence was recorded by the committing Magistrate and his deposition was admitted at the session trial, the question of whether the evidence of the investigation officer that it was learnt that the witness had died was sufficient proof of the death was left open by the Supreme Court. Much earlier, in Maharaja of Kolhapur V. Sundaram Ayyar, AIR 1925 Mad 497 the Madras High Court held that:
"I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value. I need only refer to Tahlor on Evidence, Section 1469 : DAVIES v. OTTY [(1865) 35 Beav. 208 = 5 N.R. 391 = 34 L.J.Ch. 252)], ELIAS v. GRIFFITH [(1877) 46 L.J.Ch. 806)], MAN GOBINDA CHOWDHURI v. SHAHINDIA CHANDRA CHOWDHURI [(1908) 35 Cal. 28)] and DHANU RAM MAHTO v. MURLI MAHTO [(1909) 36 Cal. 566= 13 C.W.N. 525 = 1 I.C. 366 = 11 C.L.J. 150]. There is nothing in the Evidence Act which renders such evidence inadmissible. In ROSI v. PILLAMMA [(1910) 20 M.L.J. 400 = 7 M.L.T. 41 = 5 I.C. 512 = 11 Cr. L.J. 145] it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded.' Thus, the law insists that to accept the testimony of every witness who deposes in court, she (or he) should be cross examined. However, if it is shown that the witness, after deposing in examination in chief, could not present himself or herself for cross examination, the Court has to probe further the reasons for absence of such a witness. It cannot, in a stereotypical manner, reject the deposition; if the reasons point to the unavailability of the witness for genuine reasons, beyond the prosecution's control, such as death, serious illness or the witness becoming untraceable, the deposition recorded during examination in chief can be read, provided it is complete, and the Court is satisfied that there are no elements in that deposition, or the record, which can shake the testimony. The Court has to therefore, adopt a cautious approach, either way."
In Somagutta Sivasankara Reddy and another vs. Palapandia Chinna Gangappa and others passed in Civil Revision No. 4678 of 199, Andhra Pradesh High Court has held as under:
"In Horilal vs. State of U.P. 1970 (2) SCJ 223, it was held that where a witness died after his evidence was recorded by the committing Magistrate and his deposition was admitted at the session trial, the question of whether the evidence of the investigation officer that it was learnt that the witness had died was sufficient proof of the death was left open by the Supreme Court.
In Arabinda Dey v. The State, MANU/WB/0070/1953:AIR 1953 Cal 1206 it was held that where witness died before the sessions trial begin, his evidence in committing Court was held admissible under this section.
In "Murphy on evidence" it is stated:
It seems that where a witness, who has given evidence in chief, becomes unavailable to be cross-examined, his evidence in chief remains admissible, but is unlikely to carry very much weight, MANU/KE/0226/1997.
We may , however, notice in A.P. TOBACCO GROWERS CO-OP. UNION LTD. (supra), the evidence was held to be inadmissible. The said decision, in or opinion, has no application to the facts of the present case inasmuch as therein the witness, PW1, whose evidence was sought to be relied upon was not produced.
Section 33 of the Evidence Act, in our opinion, is clear and unambiguous. If a witness is not deliberately produced and/or if the conditions precedent for admissibility of the evidence of a witness as specified in Section 33 are not fulfilled, such evidence, evidently, would not be admissible in evidence. It further appears that in the said case, well known principles of law laid down in several decisions of various High Courts, as noticed hereinabove, had not been brought to its notice.
A similar view has been taken by learned single Judge of the Kerala High Court in Food Inspector, THODUPUZHA CIRCLE VS. JAMES N. T., MANU/KE/0226/1997."
In Food Inspector vs. James N.T. And another passed in Crl. Appeal No. 846 of 1994, Kerala High Court has observed as under:
"The general proposition that the evidence of a witness who is not subjected to cross examination cannot be looked into, cannot be disputed. But the question to be considered in this case is whether the evidence of P.W. 1 who was examined in chief and was not available for cross examination due to his death in the meanwhile, is admissible in evidence or not. The principles laid down in the decisions relied upon by the counsel for the appellant referred to above clearly establish that the evidence of a witness who could not be subjected to cross examination due to his death before he could be cross examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of the case. Therefore, the lower Court is not at all justified in discarding the evidence of PW 1 on the ground that he was not available for cross examination and therefore, great prejudice will be caused to the respondents if his evidence is accepted."
In view of above settled legal position, the statement of the victim, who has died before her cross examination has to be scrutinized very carefully.
From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus:-
(i) There is no rule of law that corroboration is essential before there can be conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.
(ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.
(iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus;
(a) circumstances showing on the part of prosecutrix an animus against the accused:
(b) where the question of want of consent is materia, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle;
(c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix:
(d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earlierst opportunity;
(e) element of artificiality or unnatural-ness in the story as attempted by the prosecutrix, and
(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.
In the present case, P.W. 2 Jagdish is the father of prosecutrix but admittedly he was not present at the time of incident and he had gone to village Madnapur. He has stated that his daughter and other witnesses had told him about the incident.
Lallu Ram P.W. 3 is the brother of the prosecutrix and he has also stated that at about 3.30 a.m. upon alarm he had come from his house to the place of occurrence. This statement in itself goes to show that he was not present in the house at the time of incident. Moreover, in the First Information Report also, presence of Lallu Ram P.W. 3 has not been shown and it has not been mentioned that Lallu Ram had also come on the spot. This witness in his cross-examination has admitted that he had not seen the accused opening 'Nara' and when the injury was caused by knife, he was at a quite distance and when he has come to the spot by that time the accused had run away from the spot. This witness has also failed to state that who had scribed the report. It goes to show that this witness has reached the spot while accused was running away.
Smt. Ratana P.W. 4 is the mother of the prosecutrix but she has also not seen the incident of opening 'Nara' of the prosecutrix and she has specifically admitted in her cross-examination that she had not seen the accused that he was opening 'Nara' of the victim. She has further stated that the fact of opening 'Nara' and inflicting injury by knife were told by her daughter.
In this way, the statement of P.W. 2 Jagdish does not corroborate the statement of the victim because he was not present on the spot. P.W.3 Lallu Ram had also admitted in his statement that he had not seen the accused while opening 'Nara' Smt. Ratana P.W. 4 has also stated in the same way that she has not seen the accused opening 'Nara'. In the First Information Report, presence of Murli has been shown and the victim in her statement has developed the presence of Lallu Ram and Ram Bhoj. Prosecution has not examined Ram Bhoj and Murli and they have been discharged.
In these circumstances, the statement of the prosecutrix has not been corroborated by any other witness regarding attempt to commit rape. Although there is no rule that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. In the instant case, the prosecutrix had died after the examination-in-chief and no cross examination has been conducted. Under these circumstances, the corroboration of the statement of the victim was required. The witnesses of facts examined by the prosecution have specifically stated that they have not seen the accused that he was opening 'Nara'. They have also not stated anywhere that the accused had attempted to commit rape upon the victim. In these circumstances, it is not proved that the appellant had attempted to commit rape upon the prosecutrix. Therefore, conviction for the offence punishable under Sections 376/511 I.P.C. cannot be sustained.
There are two other charges of house trespass and causing injuries by knife. The prosecutrix in her statement has specifically stated that when she was sleeping in the night, accused had entered into her house and had caused injury by knife upon her resistance. The injuries of the prosecutrix have been proved by Dr. V.K. Agarwal P.W. 6, who has specifically stated that upon the examination of the prosecutrix, there was one sharp edged injury and the marks of abrasion. He has further stated that these injuries was caused on 5.7.1995 at about 3.00 a.m. This witness has been examined by the defence but nothing adverse has come in his statement. Lallu Ram P.W. 3 has stated in his statement that he had seen the accused while he was inflicting injury by knife. Smt. Ratana P.W. 4 has also stated that appellant had entered her house and he had caught hold her daughter which she had seen from the distance of 7-8 hands.
In these circumstances, the statement of the victim regarding house trespass and causing injury is corroborated by the statement of Lallu Ram P.W. 3 and the statement of Ratana P.W. 4. It is further corroborated by the statement of Dr. V. K. Agarwal P.W. 6.
Accused has failed to proved that he has been falsely implicated due to enmity with the village Pradhan. It has come in the statement of the witnesses that the accused is a leader and he is also related with the complainant. There appears to be no reason to believe that the appellant has been falsely implicated due to enmity. Moreover, injuries of knife have been found on the body of victim. I do not see any reason as to why she will falsely implicate the appellant and will spare the real assailant.
The prosecution has succeeded in proving the guilt of the appellant for the offences punishable under Sections 452 and 324 I.P.C. Learned trial court has also appreciated the evidence in this regard in a proper way. From the careful scrutiny of all the evidence on record, I am of the view that the prosecution has succeeded in proving the guilt of the appellant for the offences punishable under Sections 452 and 324 I.P.C.
Accordingly, the appeal is liable to be partly allowed. The conviction for the offences punishable under Sections 376/511 I.P.C. is liable to be set aside but the conviction for the offences punishable under Sections 452 and 324 I.P.C. is liable to be upheld.
Learned counsel for the appellant has submitted that the appellant had already remained in jail for about one and half years, therefore, lenient view may be taken. The incident took place on 4/5.7.1995 and perusal of the record shows that he had surrendered himself on 31.7.1995. He has been granted bail by the Sessions Judge, Kheri by order dated 26.8.1995 and the bail bonds have been filed on 31.8.1995. In this way, the appellant has remained in jail for about one month during the trial. The appellant was convicted by judgment and order dated 20.2.2007 and was taken into custody. Upon filing this appeal, the appellant has been granted bail on 22.11.2007 by this Court. Accordingly, the appellant has remained in Jail for about nine months. The incident took place in the year 1995 for which about 19 years have passed. The ends of justice will be satisfied if the appellant is sentenced to the period already undergone.
The appeal is partly allowed.
The conviction for the offences punishable under Sections 376/511 I.P.C. is set aside. The conviction for the offences punishable under Sections 452 and 324 I.P.C. is upheld.
The appellant is sentenced to the period already undergone alongwith a fine of Rs. 5000/- and in default of payment of fine, the appellant shall further undergo imprisonment for one month.
The appellant is directed to deposit the said amount of fine within one month from today, failing which the trial court shall be at liberty to take steps for realization of fine.
Office is directed to send certified copy of this order alongwith lower court record to the court concerned at an early date.
Order Date :- 13.8.2014 Rizvi