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Madhya Pradesh High Court · body

2009 DIGILAW 561 (MP)

Karu @ Samar Singh v. State of M. P

2009-04-28

S.K.GANGELE

body2009
JUDGMENT 1. This jail appeal has been filed by the appellant under section 374 of CrPC, against the judgment dated 3.6.2005, passed by Shri Rameshwar G. Kothe, the Third Additional Sessions Judge, Gwalior in Sessions Trial No.33/2005 whereby the learned trial Court convicted the appellant under sections 366 of IPC and sentenced to undergo 5 years RI with fine of Rs.l,000/- and also convicted the appellant under section 376(1) of IPC and awarded a sentence of RI 10 years with fine of Rs.5,000/-with default stipulations. All the above sentences have been directed to run concurrently. 2. As per the prosecution story, on 28.9.2004 at about 8:15 p.m. in the night, the appellant abducted the prosecutrix from village Sumawali Aam Road, Police Station Behat. It is alleged that the appellant had sexual intercourse with the prosecutrix and took her to various places such as Behat and Gadroli. In all these places, he committed rape on the prosecutrix. Thereafter, on the next date, the appellant-accused took her via Badagaon to Mou District Bhind by truck, where he was arrested. 3. On 3.10.2004, a report of the incident was lodged at Police Station, Behat, District Gwalior. The prosecutrix was recovered and thereafter she was medically examined. The police recorded statements of various witnesses and filed charge-sheet. Trial Court framed charges against the appellant alongwith two other accused persons under sections 366 and 376(1) of IPC. The appellant, in his statement, denied the charges. After recording the evidence trial Court found that the offence is proved against the appellant under sections 366 and 376(1) of IPC and awarded him a sentence of 5 years and 10 years RI respectively with fine of Rs.1,000/- and Rs.5,000/- on each count, whereas the other two accused persons have been acquitted from the offence. 4. Learned counsel for the appellant has submitted that the trial Court has committed an error in convicting the appellant under sections 366 and 376(1) of IPC. The conviction of the appellant is based on the sole testimony of prosecutrix, however, that testimony is not reliable. 4. Learned counsel for the appellant has submitted that the trial Court has committed an error in convicting the appellant under sections 366 and 376(1) of IPC. The conviction of the appellant is based on the sole testimony of prosecutrix, however, that testimony is not reliable. In support of his contentions, learned counsel relied on the following judgments : (i) 2001(2) BLJ 89=AIR 2001 Supreme Court 3049 in the matter of Dilip and another v. State of M.P. (ii) AIR 2003 Supreme Court 2136 in the matter of Sudhansu Sekhar Sahoo v. State of Orissa and; (iii) 2007(6) Supreme Court Cases 465 in the matter of Narayan alias Naran v. State of Rajasthan. 5. Contrary to this learned Public Prosecutor has submitted that there is sufficient evidence against the appellant for his conviction and there is no illegality or irregularity in the impugned judgment warranting interference, hence, appeal is liable to be dismissed. 6. The marg was lodged at the Police Station Behat, District Gwalior on 6.10.2004 by Chandrabhan Singh. It has been mentioned in the marg that one Rajendra s/o Vijay Singh Baghel, resident of Sumawali, Police Station Behat, District Gwalior has lodged a report with regard to missing of Kallo @ Kalabati. On the aforesaid information, a report was registered on marg and after inquiry it was found that Harishchand and Keshav @ Bhindi had forcibly abducted Kallo @ Kalabati and they took her to Gadroli and thereafter to Hanuman Mandir. 7. Prosecutrix (PW1) in her evidence deposed that six months before, she had been going to her in-law's house from Morar Bus Stand along with her nephew Parmal. When Parmal went to drink water, appellant Samar Singh came to her and took her forcibly to his village in a Jeep. There were no other persons in the Jeep along with the appellant. At this stage, the prosecutrix was declared hostile by the Public Prosecutor. She in her deposition contradicted her statement given to the police under section 161 CrPC that Harishchand and Keshav @ Bhindi were in the Jeep. The aforesaid facts have been stated by the prosecutrix in her statement recorded under section 161 of CrPC. She further stated that appellant Karu @ Samar Singh proposed her for marriage and thereafter he took her to village Madaiya, situated near Bhind. He married with her and thereafter committed rape with her. The aforesaid facts have been stated by the prosecutrix in her statement recorded under section 161 of CrPC. She further stated that appellant Karu @ Samar Singh proposed her for marriage and thereafter he took her to village Madaiya, situated near Bhind. He married with her and thereafter committed rape with her. He had also taken to the prosecutrix to Bhind Court for the purpose of marriage. She admitted that she had affixed her thumb impression on certain papers and after a period of 8 days, the police recovered her from the house of relative of the appellant. Thereafter, she was medically examined. In her statement under section 161 of CrPC, she stated that on 28.9.2004, she had been going to her in-law's house along with her nephew Parmal and when Parmal went to market, she sat into a Jeep, which had been stationed there. Co-accused Harishchand and Keshav @ Bhindi had also been sitting along with her in the Jeep. They threatened her and did not permit her to get down at Sumawali. She further stated in her statement that all the three persons took her to Gadroli and at Gadroli in the night Keshav @ Bhindi committed sexual intercourse with her and thereafter on 29.9.2004, she reached at Baba Mandir on a motorbike of Samar Singh along with Bhindi and thereafter on 30.9.2004, she came to Tapriya in a dumper truck and thereafter the accused Karu @ Samar Singh took her by a bus to his sister's house where he kept her and committed rape with her. Thereafter she was recovered by the police from the village Madaiya. It is clear from the statement of the prosecutrix under section 161 of CrPC that she has made major omissions and contradictions in her statement before the Court. 8. Parmal (PW2) in his deposition before the Court stated that he along with his aunt (prosecutrix) came to Baradari Chouraha and thereafter he went to the market for purchasing some articles. When he returned back from the market, his aunt' (prosecutrix) was not there. 8. Parmal (PW2) in his deposition before the Court stated that he along with his aunt (prosecutrix) came to Baradari Chouraha and thereafter he went to the market for purchasing some articles. When he returned back from the market, his aunt' (prosecutrix) was not there. Rajendra Singh (PW3), who is the elder brother of the husband of the prosecutrix also stated the same facts in his deposition before the Court that his son Parmal had been accompanying the prosecutrix to leave her to her parent's house and on the way when he had gone to market and when he returned back he found that the prosecutrix was not there. Nihal Singh (PW4), father of the prosecutrix also stated the fact that he sent Parmal to take back to the prosecutrix to his house and from Baradari Chouraha, the prosecutrix had been missing. At this stage, he has been declared hostile. The driver of the Jeep also did not support the prosecution. The other witnesses also did not support the prosecution story. 9. Dr. Alaka Jain (PW9) in her deposition stated that she was posted as Assistant Surgeon at Kamla Raja Hospital and she examined the prosecutrix on 10.10.2004, there was no external or internal injury over the body of the prosecutrix including on her private part. According to the doctor, the prosecutrix was habitual for sexual intercourse. No redness or tenderness was seen over vagina of prosecutrix. From the evidence on record of the case, it is clear that the conviction of the appellant has been based on the sole evidence of the prosecutrix. 10. The Hon 'ble Supreme Court in the case of Sudhansu Sekhar Sahoo v. State of Orissa, reported in AIR 2003 Supreme Court 2136, relying various earlier judgments of the Hon 'ble Supreme Court, has held as under with regard to conviction on the basis of sole testimony of the prosecutrix for sexual offence: "11. It is true that the sole testimony of the victim of a sexual offence can be a basis for conviction provided it is safe, reliable and worthy of acceptance. The Court had occasion, in many cases, to consider the nature of evidence required when the conviction mainly based on the testimony of the victim of the sexual offence. 12. It is true that the sole testimony of the victim of a sexual offence can be a basis for conviction provided it is safe, reliable and worthy of acceptance. The Court had occasion, in many cases, to consider the nature of evidence required when the conviction mainly based on the testimony of the victim of the sexual offence. 12. In Balwant Singh and others v. State of Punjab [ (1987)2 SCC 27 ], the victim was a 19 years old student and the allegation was that when she was on her way to the college, three accused persons forcibly took her away in a car to the canal bank where she was subjected to sexual intercourse by the accused. She fell unconscious and later she was found lying in a state of unconsciousness under a Banyan tree by her father. There was no eye-witness. On medical examination, her hymen was found torn and there were reddish abrasions on her breast. The police investigated the case and the case was reported to be cancelled. The victim filed a private complaint and the Magistrate committed the accused persons for trial to the Court of Session. The Sessions Judge convicted the accused persons and this Court confirmed the conviction. This Court held that both the learned Additional Sessions Judge and the High Court have believed the evidence of the prosecutrix and her father and in their opinion there is no reason why their evidence should not be believed and the conviction was thus solely based on the evidence of the prosecution. 13. In Rafiq v. State of U.P. [( 1980)4 SCC 262], a middle aged bal sewika in a village welfare organisation was raped by the appellant around 2:30 a.m. when she was sleeping in a girls' school. On the next day, she reported the matter to the mukhya sewika of the village. The counsel for the accused contended that there was absence of corroboration of the testimony of the prosecutrix and that there was absence of injuries on the person of the woman and so the conviction was unsustainable. But this plea was rejected and this Court held: "The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life styles may fluctuate, and so, rules of prudence relevant in one fact situation may be inept in another. But this plea was rejected and this Court held: "The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life styles may fluctuate, and so, rules of prudence relevant in one fact situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some standards of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances". 14. In Krishan Lal v. State of Haryana [(1860)3 SCC 159], the victim was sleeping with her mother and other children outside her house on a hot night and the two accused persons carried her away to a nearby godown under intimidation and allegedly committed rape on the young woman. In the morning, the mother of the victim found blood on the daughter's salwar and thereupon she narrated the criminal assault of the accused on the previous night. The counsel for the accused urged that the evidence of the prosecutrix, without substantial corroboration, was inadequate to rest a conviction under S.376, IPC. This plead was rejected and it was held by this Court as under: "We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value ... To forsake these vital considerations and go by the obsolescent demands for substantial corroboration is to sacrifice common sense in favour of an artificial concoction called 'Judicial' probability. Indeed, the Court loses its credibility if it rebels against realism. The law Court is not an unnatural world". 15. In State of Maharashtra v. Chandraprakash Kewalchand Jain [ (1990) 1 SCC 550 ], a girl eloped with a 25 years old young man. They went to Bombay and got married. Indeed, the Court loses its credibility if it rebels against realism. The law Court is not an unnatural world". 15. In State of Maharashtra v. Chandraprakash Kewalchand Jain [ (1990) 1 SCC 550 ], a girl eloped with a 25 years old young man. They went to Bombay and got married. Thereafter they came to a place near Nagpur and checked in a lodge. The local Police Sub-Inspector came to know that the couple was staying in the said lodge and he took them to the police station where the husband was beaten up and the wife was threatened. The Sub-Inspector registered a case against the husband alleging that he was found misbehaving on a public street and put him in the lock-up. The girl was left in a hotel. It was alleged that the Sub-Inspector visited the girl's room and committed rape on her. In that case, this Court elaborately considered the question whether conviction can he based on the sole testimony of the victim of the sexual, offence and held: "Is it essential that evidence of prosecutrix should be corroborated in material particulars before the Court bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration befo reacting on the evidence of the prosecutrix.... A prosecutrix of a sex offence cannot be put on par with accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S.118 and her evidence must receive the same weight as is attached to an injured incases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S.114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds .that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness". 16. In State of U.P. v. Lekh Raj [(2000)1 SCC 47], this Court held that "the hypertechnicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth." In State of Rajasthan v. N.K. [ (2000)5 SCC 30 ], this Court held : "It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the Court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony." 17. It is well settled that in rape cases the conviction can be solely based on the evidence of the victim provided such evidence inspires confidence in the mind to the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material" 11. The Hon'ble Supreme Court in the case of Dilip and another v. State of M.P., reported in 2001(2) BLI 89=AIR 2001 Supreme Court 3049, has further held as under : "In the instant case the gange rape is alleged to have been committed at about 2 p.m. in house of prosecutrix situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix alleged to have raised hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. The prosecutrix alleged to have raised hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. The part of the story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the Court. In the circumstances, the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her cannot be accepted in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. Since the testimony of the prosecutrix cannot be relied upon, the accused in the circumstances would entitled to acquittal." 12. The Hon'ble Supreme Court further in the case of Narayan alias Naran v. State of Rajasthan, reported in (2007)6 Supreme Court Cases 465, has considered the evidence of the prosecutrix and held as under: "11. In the cross-examination the prosecutrix (PW3) stated that she boarded the trolly at about 5 O'clock in the evening and by 7 0' clock they reached Singhpur village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ex.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ex.P-l) says that there were no injuries on the body of the prosecutrix (PW3). There were no injuries on her private part. It is ultimately opined that "no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse". In the circumstances, is it possible to believe that the prosecutrix (PW3) has been subjected to rape twice by the accused as alleged? In the first information report (Ex.P-5) it is stated that the prosecutrix (PW3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according tothe prosecutrix (PW3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily." 13. The Hon'ble Supreme Court further in the case of Ramdas and others v. State of Maharashtra, reported in (2007)2 SCC 170 , has held as under with regard to sustainability of conviction in a case of rape on the basis of sole testimony of the prosecutrix: "23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be suffici.ent to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality." . 14. In the present case, the prosecutrix in her statement under section 161 of CrPC before the police stated that when she sat in the Jeep, two persons namely, Harishchand and Keshav @ Bhindi had been sitting in the Jeep and they threatened her and took her to Gadroli and thereafter they committed rape one by one with her. 14. In the present case, the prosecutrix in her statement under section 161 of CrPC before the police stated that when she sat in the Jeep, two persons namely, Harishchand and Keshav @ Bhindi had been sitting in the Jeep and they threatened her and took her to Gadroli and thereafter they committed rape one by one with her. Thereafter she went to the place of Baba Mandir on the motorcycle of Samar Singh, the present appellant. Hence, as per the statement of the prosecutrix under section 161 of CrPC, the appellant Samar Singh first came at Gadroli and thereafter the prosecutrix went to Tapariya and then the appellant proposed her for marriage. However, in her deposition before the Court, she did not mention the names of other two accused persons, namely, Harishchand and Keshav @ Bindi and only made allegations against the appellant Samar Singh and stated that in the Jeep only the appellant was sitting and thereafter he did' not permit her to get down at Sumawali and he took her to Gadroli. She further stated that the appellant proposed her for marriage. Thereafter he took her to village Madaiya near Bhind and kept her at Madaiya. She further stated that the appellant took her for marriage at District Court, Bhind and she also affixed her thumb impressions on some papers and some proceedings were undertaken with regard to marriage at District Court and after a period of 8 days, the police recovered her from the house of sister of the appellant. 15. From the evidence of the prosecutrix, it is clear that the prosecutrix went along with appellant in a jeep and thereafter they proceeded to Bhind by bus. She further admitted in her evidence that there were passengers in the bus but she did not tell anybody in the bus neither she made any hue and cry at that moment. The reason put forth for the aforesaid act by the prosecutrix is that the appellant threatened her to kill her. She further stated that she stayed with the appellant at the residence of his sister and thereafter she went to District Court, Bhind and she met with an Advocate, where her photograph was taken out and thereafter she affixed her thumb impressions on some papers for Court marriage. She further stated that she stayed with the appellant at the residence of his sister and thereafter she went to District Court, Bhind and she met with an Advocate, where her photograph was taken out and thereafter she affixed her thumb impressions on some papers for Court marriage. She further stated that she was in District Court, Bhind for near about one hour and the Advocate also told her about marriage. In the Court also, she did not tell anybody about threat. She voluntarily signed the marriage papers. Her affidavit was notorised by the Notary. Furthermore, as per the evidence of doctor, who examined the prosecutrix, there was no external or internal injury on the body of the prosecutrix and there was no reddishness or tenderness was found over vagina. The hymen was old ruptured and as per the statement of the doctor, the prosecutrix was habitual to sexual intercourse. Looking to the aforesaid evidence of the prosecutrix, in my opinion, as per the principle of law laid down by the Hon'ble Supreme Court, it is not justifiable to convict the appellant on the basis of sole evidence of the prosecutrix. The evidence of prosecutrix is not of that quality on which the conviction could be sustained solely on the basis of testimony of the prosecutrix. 16. Consequently, appeal of the appellant is allowed. The judgment dated 3.6.2005, passed by the Third Additional Sessions Judge, Gwalior in Sessions Trial No.33/2005, is hereby set aside. The appellant is hereby acquitted from the charges framed against him by the trial Court. The appellant is in jail. He be set at liberty forthwith, if not required in any other case. Appeal is allowed. 17. This Court appreciate Shri S.K. Shrivastava, who has been appointed as Amicus Curaie, prepared, argued the case on behalf of the appellant very well and assisted the Court ably with sense of responsibility.