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2012 DIGILAW 341 (MP)

TRILOKI v. STATE OF M. P.

2012-03-22

U.C.MAHESHWARI

body2012
JUDGMENT : 1. This appeal is directed by the appellant-accused being aggrieved by the judgment dated 24-2-1996, passed by 1st Additional Sessions Judge Bhopal, in Sessions Trial No. 273/94, convicting him under section 376 of Indian Penal Code for R.I. seven years. 2. The facts giving rise to this appeal in short are that, one Smt. Ganeshiabai, the complainant-prosecutrix along with her husband came to Bhopal for their livelihood as labour. Her husband being Meson, was working at some other place at Rajat Nagar, while the said Smt. Ganeshiabai, was working with the appellant on some plot No. 90, Neeraj Nagar. On dated 30-4-1994, the complainant was working as labour on the aforesaid plot with the appellant at about 11.00 O'clock in the morning, when she went inside the premises to bring the cement, at the same time, the appellant also entered in such premises and caught hold her. She tried to shout, but by giving the criminal intimidation, she was forcefully taken by the appellant into the bathroom where after throwing her on the floor by removing her cloths, he committed rape on her. After such incident prosecutrix came to her home, but her husband was not there, who came in the evening from his job, then after apprising him regarding aforesaid, she accompanied with him went to the Police Station Piplani, and lodged the First Information Report (Ex.P-1) of the offence of section 376 of Indian Penal Code against the appellant. She was sent to the hospital for her medical examination where after carrying out the same, the MLC report was prepared. On completion of the investigation, the appellant was charge-sheeted for the aforesaid offence. 3. After committing the case to the Sessions Court, on evaluation of the charge-sheet, on framing the charge of section 376 of Indian Penal Code against the appellant, he abjured the guilt. On which, the trial was held. After recording the evidence on appreciation after holding guilty to the appellant under the aforesaid section, he was punished with the abovementioned punishment, hence this appeal. 4. Shri Harmeet Singh Ruprah, learned counsel for the appellant after taking me through the record of the trial Court argued that the story put forth by the prosecution has not been proved by any independent source of the evidence except the prosecutrix and her husband. 4. Shri Harmeet Singh Ruprah, learned counsel for the appellant after taking me through the record of the trial Court argued that the story put forth by the prosecution has not been proved by any independent source of the evidence except the prosecutrix and her husband. Any of the independent witness has not stated any incriminating thing against the appellant showing his involvement with the alleged offence. In this respect, he also referred the deposition of the defence witnesses namely; Shivwati (DW-1), Haragram (DW-2) and Gourishanker (DW-3). He further argued that in support of the testimony of the prosecutrix and her husband-Rajendra, the concerning doctor, who prepared the MLC report of the prosecutrix, has also not been examined. In the lack of such material medical evidence to prove the alleged rape on the person of the prosecutrix mere on the basis of oral testimony of the prosecutrix and her husband, the impugned conviction of the appellant could not be sustained. He further argued that the story put forth by the prosecution has also not been supported by the FSL report relating to the slide of the vaginal fluids of the prosecutrix and prayed for acquittal of the appellant by allowing this appeal. He also placed his reliance on the case laws in the matter of Sadashiv Ramrao Hadbe vs. State of Maharashtra and another reported in (2006) 10 SCC 92 , in the matter of Nandlal Yadav vs. State of M.P. reported in 2002(2) MPLJ 376 and in the matter of Bibhishan vs. State of M.P. reported in (2007) 12 SCC 390 . 5. On the other hand, by justifying the impugned conviction and sentence of the appellant Shri Rakesh Kesherwani, learned Panel Lawyer, said that the same being based on proper appreciation of the evidence, do not require any interference at this stage. In continuation he said that, as per settled proposition, mere on the testimony of the prosecutrix the accused of the offence of rape could be held guilty and punished. In the available circumstances, the deposition of prosecutrix being natural is reliable. The corroboration of the same either from the independent source or the medical evidence are not necessary. In continuation he said that, as per settled proposition, mere on the testimony of the prosecutrix the accused of the offence of rape could be held guilty and punished. In the available circumstances, the deposition of prosecutrix being natural is reliable. The corroboration of the same either from the independent source or the medical evidence are not necessary. In the available factual matrix even in the lack of examination of the doctor, who examined and prepared the MLC report of the prosecutrix, so also in the absence of any deposition of independent witness, by discarding and disbelieving the deposition of the prosecutrix and her husband, the appellant could not be acquitted in the matter. In continuation he said that, in the matter of rape mere absence of any injury on the person of the prosecutrix or in the lack of any medical evidence in that regard, the deposition of the prosecutrix could not be disbelieved. So far as FSL report is concerned, he said that according to such report, some sign of committing the rape were found in the examination of her wearing cloths so also on examining her vaginal fluid slide prepared by the doctor. He further argued that on the same day after coming her husband to the residence the prosecutrix accompanied with him went to the Police Station and lodge the report against the appellant so it could not be deemed to be delayed. With these submissions, he prayed for dismissal of this appeal. 6. Having heard the counsel, keeping in view their arguments, I have carefully gone through the record along with the exhibited papers of the charge-sheet so also the impugned judgment, 7. It is apparent fact on record that the alleged rape was committed by the appellant upon the prosecutrix at about 11 O'clock in the morning on 30-4-1994 and the alleged incident was reported on the same day at 6.10 PM in the evening at Police Station Piplani (Ex.P.l) by the prosecutrix, who went there accompanied with her husband. So far lodging such FIR at belated stage, it is stated in the same that after coming her husband from the work place, she accompanied with him came to lodge report. As per initial version of the prosecution, the prosecutrix Smt. Ganeshiabai (PW-1) was working with the appellant as labour at the alleged plot which was under construction. So far lodging such FIR at belated stage, it is stated in the same that after coming her husband from the work place, she accompanied with him came to lodge report. As per initial version of the prosecution, the prosecutrix Smt. Ganeshiabai (PW-1) was working with the appellant as labour at the alleged plot which was under construction. She started the work with the appellant before 6 days from the date of incident. On the date of incident, she went for work at about 9 O'clock in the morning where at about 11.00 O'clock in the morning, when she went inside the house under construction to bring the cement to prepare the construction material at the same time, the appellant also entered in the house behind her and caught hold her. She annoyed and also tried to keep out from her holdings by the appellant, but by giving some criminal threat, he took her to the bathroom where after throwing her on the floor by turning her lower cloth to the upper side, committed the rape on her. In spite of her crying, she was not left by the appellant till the alleged act was over thereafter, he asked her not to say this incident to anyone. In the alleged incident her petticoat has also become dirty. Thereafter, she ran away from such place and came to her hut from where on coming her husband in the evening from the work, she came to the Police Station and lodge the aforesaid report. The story put forth in the F.I.R. has been proved by the prosecutrix on recording her deposition in which she categorically stated that before 6-7 days, she was working as labour with the appellant at the plot of some Shrivastava Sahab and Usma Mada in Niraja Nagar. On the aforesaid date, she was asked by the appellant to prepare the construction material on which she went inside of some room to bring cement at that time, she was caught hold by the appellant from the back side. She tried to keep her out from his holding, but by giving a threat, the appellant took her inside the bathroom where after throwing on the floor, the alleged act of rape was committed by the appellant on her. She tried to keep her out from his holding, but by giving a threat, the appellant took her inside the bathroom where after throwing on the floor, the alleged act of rape was committed by the appellant on her. In continuation she stated that after the incident, she went to her hut and after coming of her husband from his work in the evening, she apprised him of the incident and thereafter, she accompanied him to the Police Station and lodged the report (Ex.P.1). She further stated that subsequent to lodging the report, she was sent to the hospital where she was medically examined by the doctor and her petticoat was seized. She further stated that in her presence the place of incident was seen by the police and its map was also prepared. Although, she has been cross-examined on behalf of the appellant at length, but on perusing para 3 of the cross-examination it appears that the story put forth by the prosecutrix in her chief has been further supported by said cross-examination. On going through the entire cross-examination, I have not found any material which is destroying the version stated by the prosecutrix in her chief. Although, in the cross-examination, the defence of false implication of the appellant on account of some money transaction or arrears of money of the husband of the prosecutrix against the appellant was taken, but in support of such defence neither any documents nor material circumstances have been put forth. In such premises, the testimony of the prosecutrix could not be discarded. The testimony of the prosecutrix is further supported by her husband Rajendra Kumar (PW-2), who on recording his deposition categorically stated that before 6 days from the date of the incident, her wife has started the work with the appellant under his Contract and on the aforesaid date of the incident when he came back to him from his work place then, her wife Smt. Ganeshiabai (PW-1) apprised him about the aforesaid incident . On going through the deposition of this witness, I have not found any material circumstances destroying the version of his chief. So far as the defence of the appellant with regard to arrears of wages of this witness against him has also not been proved by cogent and reliable evidence. On going through the deposition of this witness, I have not found any material circumstances destroying the version of his chief. So far as the defence of the appellant with regard to arrears of wages of this witness against him has also not been proved by cogent and reliable evidence. The spot map prepared by the police in the investigation has also been proved by A.K. Singh (PW-3). The Investigating Officer Mamta Singh (PW-4) on recording her deposition categorically proved all the papers prepared during the course of the investigation. She also stated that in the course of investigation she found the alleged house was under construction and also came to know that the prosecutrix (PW-1) was working with the appellant at such place since last 5-6 days from the date of the alleged incident. So far proving the age of the prosecutrix on the date of the alleged incident, her Ossification Test report (Ex.P-6) was prepared by Dr. Ashok Sharma (PW.5) in which, her age was found to be 15 and half year. The same is stated on recording in her deposition, but at present, the findings of the trial Court holding that the prosecutrix was above 16 years of the age, could not be interfered at this stage and that question is also not involved in this appeal. 8. In order to rebut the aforesaid evidence on behalf of the appellant in his defence as many as three witnesses namely Shivwati (DW-1), Harakram (DW-2) and Gourishanker (DW-3) have been examined. All these witnesses have been examined to prove the fact that the prosecutrix was neither employed by the appellant for the alleged construction work nor she was working on the date of the alleged incident with the appellant as labourer at the alleged construction site. But on going through the depositions of these witnesses although, they are saying that they were working with the appellant at the aforesaid plot, but in support of their version no admissible documentary evidence has neither been produced nor proved on the record. Even the presence of the above-mentioned witnesses have not been proved on behalf of the appellant by examining the aforesaid Usha Shrivastava on whose plot, the construction was going on. Even the presence of the above-mentioned witnesses have not been proved on behalf of the appellant by examining the aforesaid Usha Shrivastava on whose plot, the construction was going on. Besides this, in entire cross-examination of the prosecutrix (PW-1) as well as her husband Rajendra (PW-2) so also in the cross-examination of said Investigating Officer Mamta Singh (PW-4), by placing the name of these witnesses no such defence was placed on record on behalf of the appellant. So, in such premises, the trial Court has not committed any error in not relying on the testimonies of the said defence witnesses. 9. True it is from the record that at trial the prosecution had not examined the concerning doctor namely S. Jain, who after examining the prosecutrix prepared her MLC report. Although, the same was placed on the record. As per aforesaid MLC report, the slide of vaginal fluid of the prosecutrix were also prepared and besides this, pubic heir was also collected by such doctor and the petticoat of the prosecutrix was also handed over to the police. Thereafter, all these articles were sent for medical examination to Medico Legal Institute Bhopal, from where report dated 25-7-1994 (Ex.P.6) was received by the prosecution and as per submission of the appellant's counsel such report is also not helping to the case of prosecution. 10. Keeping in view the aforesaid evidence available on the record and also the factum of non-examination of the doctor, who examined the prosecutrix and prepared her MLC report and in the absence of exhibiting the MLC report on the record by the concerning doctor, the Court has to answer the question whether taking into consideration the aforesaid testimonies of the prosecutrix, her husband and the Investigating Officer, the appellant has been rightly convicted by the trial Court or in the lack of examination of the doctor by extending the benefit of doubt, the appellant ought to have been acquitted by the trial Court. It is settled proposition of law that in the matter of involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throughout or otherwise reliable to the prosecution case. It is settled proposition of law that in the matter of involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throughout or otherwise reliable to the prosecution case. The testimony of the prosecutrix if inspires the confidence and is found to be reliable then, no further corroboration of her testimony is required. Such principle was laid down by the Apex Court in the matter of State of Punjab vs. Gurmit Singh and others reported in 1996(2) SCC 384 in which it was held as under :- "8...........................................The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra vs. Chandraprakash Kewalchand Jain, 1990 (1) SCC 550 Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words : "A prosecutrix of a sex offence cannot be put on par with an 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 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 section 118 and her evidence must receive the same weight as is attached to an injured in cases 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. 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 section 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 prosecurtix 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 of 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." 11. In view of the aforesaid citation on examining the case at hand, in view of the aforesaid discussions regarding evidence available on the record the testimony of the prosecutrix (PW-1) supported by her husband Rajendra (PW-2) inspires the confidence and is also found to be reliable even in the absence of any other corroboration from the independent source or medical evidence. 12. 12. Apart the above on non-examining of the doctor, who medically examined the prosecutrix and prepared her MLC report or even producing or non-marking such MLC report at trial in the matter, cannot be a ground to extend him acquittal on the ground of benefit of doubt. In the available circumstances the testimonies of the prosecutrix inspires confidence and is found to be reliable My such approach is fully fortified by the decision of the Apex Court in the matter of Sheikh Zakir vs. State of Bihar, reported in 1983(4) SCC10, in which it was held as under :- "8.......................................... Insofar as non-production of a medical examination report and the clothes which contained semen, the trial courts has observed that the complainant being a woman who had given birth to four children it was likely that there would not have been any injuries on her private parts. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. In fact the complainant has deposed that she had taken bath and washed her clothes after the incident. The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable. It is, however, nobody's case that there was such a report and it had been withheld." 13. So, in view of the aforesaid principles of the Apex Court on account of non-examination of the aforesaid doctor, in the available factual matrix of the case at hand in which the deposition of the prosecutrix inspire the confidence and pursuant to it, the same is reliable, the appellant could not be acquitted from the alleged charge of section 376 of Indian Penal Code. 14. In the matter of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat reported in 1983(3) SCC 217 , the Apex Court has held that no independent corroboration of the prosecutrix testimony is required as rule. 15. 14. In the matter of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat reported in 1983(3) SCC 217 , the Apex Court has held that no independent corroboration of the prosecutrix testimony is required as rule. 15. Considering the aforesaid all earlier decided cases of the Apex Court on arising the occasion in the matter of State of M.P. vs. Dayal Sahu reported in (2005) 8 SCC 122 the Apex Court again answered such question as under :- "14. A plethora of decisions by this Court as referred to above would show that once the statement of prosecutrix inspires confidence and accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non-production of doctor's report would not cause fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities." 16. In view of the aforesaid discussions and the legal position, I am of the considered view that the trial Court has not committed any error in holding conviction against the appellant under the aforesaid offence even in the absence of examination of the doctor who examined the prosecutrix and prepared her MLC report. 17. So far as the case law cited on behalf of the appellant's are concerned, in available factual matrix of the case, the same is not helping to the appellant. The same is being taken one by one. 18. 17. So far as the case law cited on behalf of the appellant's are concerned, in available factual matrix of the case, the same is not helping to the appellant. The same is being taken one by one. 18. The case law in the matter of Sadashiv Ramrao Hadbe (supra), the concerning appellant was acquitted by the Apex Court taking into consideration the factual matrix that the appellant being doctor has committed rape with the victim in his clinic in which large number of persons were present, and in presence of such large number of persons committing the alleged act by the appellant is highly impossible, such appellant was acquitted. It was also taking into consideration by the Apex Court that the prosecutrix went out from the clinic without being assaulted. But in the case at hand, it is apparent fact that the alleged rape was committed by the appellant with the prosecutrix when she went inside of the house under construction after taking her in the bathroom where nobody was present to hear the noise of the prosecutrix, although as per deposition of the prosecutrix (PW-1), she cried and tried to keep out from holding of the appellant. So, the cited case is not helping to the appellant. So far as the principle laid down by the Apex Court in this case, this Court did not have any dispute. 19. So far as the law laid down in the case of Bibhishan (supra), the same was decided taking into consideration some different facts and circumstances in which the prosecutrix was not found reliable in the light of the available medical evidence which is not the situation here in the case at hand. On appreciation of the evidence, the testimony of the prosecutrix supported by her husband is found reliable and, therefore, this cited case is also not helping to the appellant. Besides this in the matter of Nandlal Yadav (supra), decided by this Court, being distinguishable on facts with the present matter, the same is also not helping to the appellant. 20. On appreciation of the evidence, the testimony of the prosecutrix supported by her husband is found reliable and, therefore, this cited case is also not helping to the appellant. Besides this in the matter of Nandlal Yadav (supra), decided by this Court, being distinguishable on facts with the present matter, the same is also not helping to the appellant. 20. In the aforesaid premises, I have not found any perversity, illegality, infirmity or anything contrary to the propriety of the law in the impugned judgment holding conviction against the appellant under section 376 of Indian Penal Code, hence by affirming the conviction as well as the imposed punishment, this appeal being devoid of any merit is hereby dismissed. In view of dismissal of this appeal, the bail bonds of the appellant is hereby cancelled and he is directed to surrender himself before the trial Court on or before 15-4-2012 for facing the remaining jail sentence awarded by the trial Court failing which, the trial Court is directed to take appropriate steps to take the appellant in custody and send him to jail to serve the remaining jail sentence. 21. Appeal is dismissed as indicated above.