apeal424.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.424 OF 2002
1] Prafulla Vinayak Nage,
Age about 21 years,
Occu: Education,
R/o Mayanagar, Amravati.
2] Atul Shrikrishna Bhadake,
Age about 21 years,
R/o Mayanagar, Amravati,
Tq. & Dist. Amravati. ....... APPELLANTS
...V E R S U S...
The State of Maharashtra,
through P.S.O. Rajapeth,
Amravati. ....... RESPONDENT
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Shri R.J. Shinde, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 21.09.2017 DATE OF PRONOUNCING THE JUDGMENT : 26.09.2017 1] Challenge is to the judgment and order dated 10.07.2002 delivered by the 2nd Ad hoc Additional Sessions Judge, Amravati in Sessions Trial 235/2001, by and under which, the appellants are convicted of offence punishable under section 376 (2)(g) of Indian Penal Code and under section 354 read with ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:53 ::: apeal424.02.J.odt 2 section 34 of I.P.C. and are sentenced to suffer rigorous imprisonment for five years and fine of Rs.2000/-. Separate sentence is not awarded for offence punishable under section 354 read with section 34 of I.P.C.
2] Heard Shri R.J. Shinde, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.
3] The case of the prosecution as can be culled out from the First Information Report dated 27.09.2001 (Exh.14) lodged by the prosecutrix is thus:
The prosecutrix states in the First Information Report ("F.I.R." for short) that in the afternoon of 27.09.2001 she went to the open ground behind the spinning mill situated in the M.I.D.C. area of Amravati, to answer the nature's call. The prosecutrix states in the F.I.R., that she was accosted by the appellants and one juvenile in conflict ("J.C." for short) from behind. The J.C. held her by the hair, she was thrown on the ground and the appellants and the J.C. committed forcible sexual intercourse one after the other. The F.I.R. states that the prosecutrix fell unconscious and could recover her senses only when somebody ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:53 ::: apeal424.02.J.odt 3 sprinkled water on her face. The F.I.R. states that when the prosecutrix gathered senses, the two appellants and the J.C. were standing near her. At that moment, one shop-keeper by name Shahu came near her. The appellants and the J.C. started running away, the shop-keeper attempted to apprehend them and realizing that he could not do so, the shop-keeper came back to the prosecutrix. The shop-keeper Shau was told that the appellants and the J.C. had committed forcible sexual intercourse. The prosecutrix states that her clothes were soaked with blood, that she disclosed the incident to her mother after her mother returned from work at 06:00 p.m. and then the prosecutrix and her mother lodged the police report.
4] An offence punishable under section 376 (2)(g), 354 read with section 34 of I.P.C. was registered on the basis of the said report Exh.13. The prosecutrix was referred for medical examination. Doctor Mangala Gaherwar (P.W.6) examined the prosecutrix at 10:45 p.m. and did not notice any visible sign of injury on the body including the private parts of the prosecutrix. Dr. Gaherwar observes that the hymen was torn and that the vagina allows two finger easily. No bleeding was noticed. P.W.6 opined that the prosecutrix was habituated to sexual intercourse ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:53 ::: apeal424.02.J.odt 4 and that no definite opinion about rape could be given. The certificate issued by P.W.6 is Exh.31. The spot panchnama records that hairs, hair pin were noticed on the spot. The said articles along with the sample of earth were seized vide Exh.21, the clothes on the person of the prosecutrix were seized vide Exh.15. The clothes of the accused Prafulla and Atul were seized vide Exh.21 and 24 respectively. The completion of the investigation culminated in submission of the charge-sheet in the Court of Judicial Magistrate First Class, Court-6, Amravati who committed the case to the Sessions Court.
5] The learned Sessions Judge framed charge at Exh.6, the accused pleaded not guilty and claimed to be tried. The defence, as is discernible from the text and tenor of the cross-examination is of false implication. A specific defence is taken that the prosecutrix and the juvenile were having illicit relationship and since the accused spread rumours in the locality, the prosecutrix has falsely implicated the accused. This defence apart, it is obvious from the suggestion given to the prosecutrix in the cross-examination, that another limb of the defence is that the sexual intercourse, if at all, was consensual. I will advert to this aspect in some detail at a later stage in the judgment. ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:53 ::: apeal424.02.J.odt 5 6] The first question which falls for consideration is whether the prosecution has proved that the age of the prosecutrix was less than 16 years, and the consent, if at all, is of no consequence. The prosecutrix has mentioned her age as 16 as on the date of deposing before the Court. The evidence of the prosecutrix was recorded on 03.06.2002 while the incident occurred on 27.09.2001. It is obvious that the prosecutrix is claiming that her age was less than 16 years as on the date of the incident. The mother of the prosecutrix is examined as P.W.2. She states that the date of birth of the prosecutrix is 14.04.1986 and that the prosecutrix was 15 years and one month old as on the date of the incident. The prosecution has examined one Girdhar Borkhade as P.W.7 to prove the age of the prosecutrix as was recorded in Jiwan Vikas Vidyalaya, Amravati. P.W.7 deposed that he is the Head Master of the said school and the prosecutrix was studying in IX standard in the year 2000-2001. P.W.7 states that he issued certificate Exh.34, the certificate is in the hand writing of P.W.7 and the date of birth is recorded in the said certificate on the basis of the original register. P.W.7 proves the entry in the original register (Exh.35). P.W.7 states that the date of birth of the prosecutrix is 14.04.1986 and her admission number is 1944. P.W.7 further states that the entry of the date of ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:53 ::: apeal424.02.J.odt 6 birth in the register was recorded on the basis of the leaving certificate of the previous school. P.W.7 produced the school leaving certificate issued by the Head Master of Veer Wamanrao Joshi School, Amravati. The photocopy, which was compared with the original, of the leaving certificate of the school in which the prosecutrix earlier stated, was exhibited despite the objection of the counsel for the accused. In the cross-examination, P.W.7 admits that the entries in the school register are not in his hand writing. P.W.7 admits that he is not aware as to under whose direction the entries in the school register were recorded. The witness is not aware of the name of the person who recorded the relevant entry.
7] At this stage, it would be apposite to notice the following observations of the Hon'ble Supreme Court in State of M.P. vs. Anoop Singh (2015) 7 SCC 773:
14. This Court in Mahadeo v. State of Maharashtra has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under:
"12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 7 as the case may be, the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
15. This Court further held in para 12 of Mahadeo, as under: (SCC p. 641) "12. ... Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 8 yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well."
(emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In para 13, this Court observed: (Mahadeo case, SCC p.
641) "13. In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the school under Ext. 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any grounds to interfere with the same."
8] It is axiomatic, that in the light of the law enunciated by the Hon'ble Apex Court, the prosecution has not established that the age of the prosecutrix was less than 16 years on the date of the incident. The evidence of P.W.7 proves the age as is recorded in Jiwan Vikas Vidyalaya, Amravati. However, the prosecution is statutorily mandated to prove the date of birth certificate from the school first attended. Concededly, neither the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 9 matriculation or equivalent certificate, nor the birth certificate issued by a corporation or municipal authority or panchayat was relied upon the prosecution. No medical examination, inter alia ossification test, was conducted to determine the age of the prosecutrix. The evidence of P.W.7 does not satisfy the requirement of Rule 12(3)(ii) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The leaving certificate issued by Veer Wamanrao Joshi School, Amravati is not proved and is not admissible in evidence. The prosecution did not examine the author of the leaving certificate nor did the prosecution examine any witness to prove the primary record on the basis of which the alleged leaving certificate was issued. The purported leaving certificate of the school which the prosecutrix first attended must be shut out of consideration as inadmissible. In view of the enunciation in State of M.P. v. Anoop Singh it must be held that the prosecution has not proved that the age of the prosecutrix was less than 16 on the date of the incident. It would also be relevant to note the following observations of the Hon'ble Supreme Court in AIR 2011 SC 715 Alamelu and another v. State:
39. Considering the manner in which the facts recorded in a document may be proved, this Court in ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 10 the case of Birad Mal Singhvi v. Anand Purohit, observed as follows:-
"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined...................................................................... Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."
The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:-
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 11
9] The next question which falls for consideration is whether the prosecution has proved that the prosecutrix was subjected to sexual intercourse. If it is held that the prosecutrix was subjected to sexual intercourse, the question would be whether the act was consensual or forcible. At this stage, it would be apposite to consider the provisions of section 376 (2)(g) as they stood prior to the Criminal Law (Amendment) Act, 2013.
376. Punishment for rape.-- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman rapes is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever, --
(a) being a police officer commits rape--
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 12
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court, may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1.-- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention,, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
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Explanation 2.-- "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3.-- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] 10] It would also be necessary to notice the provisions of section 114-A as the provisions stood prior to the Criminal Law (Amendment) Act, 2013.
"114-A. Presumption as to absence of consent in certain prosecutions for rape.-- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 14
11] The provisions noted supra, are of some relevance, since the tenor of the cross-examination is suggestive of a defence that even if sexual intercourse is proved, the sexual intercourse was consensual.
12] Shri R.J. Shinde, the learned counsel for the accused submits that the evidence on record is grossly inadequate to establish that the prosecutrix was sexually exploited. The learned counsel would submit that the medical evidence is inconsistent with the evidence of the prosecutrix that she was subjected to forcible sexual intercourse. The learned counsel would emphasis on the absence of any visible sign of injury on the person of the prosecutrix inter alia the private parts and on the opinion of the Doctor that the prosecutrix was habituated to sexual intercourse. The learned counsel would submit that the evidence of the prosecutrix is not confidence inspiring and must be discarded on the short ground that if the prosecutrix was as a fact subjected to a prolonged and brutal sexual assault by three persons, she would certainly have suffered injuries either on her person or on the private parts. The learned counsel for the accused relies on the judgment of the Hon'ble Supreme Court in (i) AIR 2011 SC 715 Alamelu and another v. State, Represented by Inspector of Police ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 15 With Sekar and another v. State, Represented by Inspector of Police
(ii) 2012 (7) SCC 171 Narender Kumar vs. State (NCT of Delhi) and (iii) 2015(10) SCALE 495 State of Karnatka vs. F. Nataraj, in support of the aforesaid submission.
14] Per contra, Shri N.B. Jawade the learned Additional Public Prosecutor submits that the sole and uncorroborated testimony of the prosecutrix, if otherwise confidence inspiring, can be the basis of conviction and the absence of injury on the person or private part of the prosecutrix, particularly if she is habituated to sexual intercourse, does not necessarily rule out forcible intercourse. The learned A.P.P. further submits that the age of the prosecutrix, assuming that she was more than 16 years old, is of no relevance. The learned A.P.P. would submit that if the sexual intercourse is proved, the statutory presumption under section 114-A would be activated since the prosecutrix has denied that she consented to sexual intercourse and the burden would be on the accused to prove that the sexual intercourse was consensual. The learned A.P.P. would then submit, that in view of the suggestions given in the cross-examination of the prosecutrix, the accused have admitted not only their presence on the spot, the accused have further admitted sexual intercourse. The learned ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 16 A.P.P. relies on the following precedents to buttress the aforesaid submissions.
[i] 2010 (8) SCC 191 Vijay alias Chinee vs. State of Madhya Pradesh.
[ii] 2014 Cri. L.J. 1092 State of Rajasthan vs. Rohsan Khan and others.
[iii] State of Himachal Pradesh vs. Gian Chand AIR 2001 SC 2075.
[iv] AIR 1995 SC 2447 Karnel Singh v. State of M.P. [v] AIR 1987 SC 1087 Balwant Singh and others v.
State of Punjab and Saudagar Singh v. State of Punjab.
15. Concededly, the conviction is based on the sole uncorroborated testimony of the prosecutrix. The medical evidence is not conclusive and indeed no visible sign of injury is noticed on the person of the prosecutrix. The clothes seized from the prosecutrix and the accused were sent to the chemical analyzer as is evident from Exh.44, but then, the report of the chemical analyzer is not on record.
16] At this stage, it would be useful to consider the law enunciated by the Hon'ble Supreme Court on the appreciation of ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 17 the uncorroborated testimony of the prosecutrix. In Vijay alias Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191 the Hon'ble Supreme Court observes thus:
9. In State of Maharashtra v. Chandraprakash Kewalchand Jain this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:
"16. 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 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 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 ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 18 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."
10. In State of U.P. Vs. Pappu this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) "12. 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. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds 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. Assurance, short of corroboration as understood in the context of an accomplice, would do."
11. In State of Punjab v. Gurmit Singh this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 19 such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) "8. ..... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix..... 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... Seeking corroboration of her statement before replying upon the same, as a rule, in such cases amounts to adding insult to injury.....::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 20
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. .....
* * *
21. ..... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
(emphasis in original)
12. In State of Orissa v. Thakara Besra this Court held that rape is not mere a physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 21 prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on earlier judgment in Rameshwar v. State of Rajasthan.
14. Thus, the law that emerges on the issue is to the effect that statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.
17] The prosecutrix is examined as P.W.1. She has deposed that when she went behind Sut-Girni to answer nature's call, accused and the J.C. arrived at the spot. One of them held the prosecutrix by hair, accused 2 held her legs, accused 1 undressed the prosecutrix and committed forcible sexual intercourse and then accused 2 also raped the prosecutrix. P.W.1 further states that the J.C. also committed forcible sexual intercourse. She has deposed that when her mother returned at 06:00 p.m. She and her mother lodged the Police report. I will advert to the cross-examination of the prosecutrix at a later stage in the judgment in the paragraph to follow. However, the testimony of the prosecutrix is unambiguous and she has deposed as to the specific roles of the accused and J.C. The incident occurred at 03:00 p.m. The F.I.R. is lodged with promptitude. It is true that ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 22 the medical evidence rules out injuries on the person of the private part of the prosecutrix. But then, the law is well settled that mere absence of injury will not exclude forcible sexual intercourse and if the evidence of the prosecutrix is implicitly reliable and trustworthy the Court is not obligated to seek any corroboration including corroborates from medical evidence. A useful reference may be made to the observations of the Hon'ble Supreme Court in State of Maharashtra vs. Chandraprakash Kewalchand Jain (1990) 1 SCC 500 which reads thus:
15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the 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 before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 23 accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the Court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).
16. 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 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 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 ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 24 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. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape.::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 25
Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.
18. .........
19. It is time to recall the observations of this Court made not so far back in Bharwada Bhognibhai Hirjibhai: (SCC p.224, para 9) "In the Indian setting, refusal to act on the testimony of a victim of sexual assaults in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remoreseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, is own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical."
Proceeding further this Court said: (SCC pp. 225-26, para 10) ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 26 "Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault .......... The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable of an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 27
18] The cross-examination of the prosecutrix is the final nail in the coffin of the accused. The learned A.P.P. is justified in contending that the suggestions given to the prosecutrix admit the presence of the accused on the spot and further the suggestion admit the act of sexual intercourse. I have extracted the relevant portion of the cross-examination which supports the submission of the learned A.P.P. Shri N.B. Jawade.
"Accused no.1 had committed forcible intercourse for about half an hour. It is not true that when the accused no.1 was committing sexual intercourse with me the other accused were looking as to who will come on the spot. It is true that when the accused no.1 was committing rape on me I had no clothes on my person."
"It is true that people had observed me and Sable while committing sexual intercourse. It is not true that accused no.1 and 2 were in the mob."
"It is true that accused no.2 had committed forcible intercourse with me for about half an hour, and pressed me on earth. I had no injury. It is not true that accused no.2 had not committed rape on me."
19] The learned counsel for the accused contends that the suggestions put in the cross-examination cannot be used to fill in the lacuna in the evidence of the prosecution. The proposition canvassed is well settled. I may only refer to the following ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 28 observations of this Court in Radhesham s/o Govardhan Bhagat vs. The State of Maharashtra 2000 ALL MR (Cri.) 52:
"Moreover, the suggestions made in the cross examination of the prosecution witnesses cannot be used to fill in the gaps in the evidence of the prosecution. Burden lies on the prosecution to prove the guilt, of the accused."
The suggestions given by the defence however, can be used to lend assurance to the prosecution case. The Hon'ble Supreme Court made the following observations in Rakesh Kumar alias Babli vs. State of Haryana AIR 1987 SC 690.
"In his cross-examination, P.W. 4, Sube Singh, stated that the accused Dharam Vir, was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, P.W. 4 said "It is not correct that Dharam Vir accused was wearing a shirt of cream colour and not a white colour at that time." The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence."
The observations of the Hon'ble Supreme Court extracted supra, are referred to and relied upon by the Division Bench of this Court in Rajesh Namdeo Mhatre v. State of ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 29 Maharashtra 2002 (4) Mh.L.J. 266. The Division Bench after referring to the observations of the Hon'ble Supreme Court in Rakesh Kumar alias Babli vs. State of Haryana observes thus:
22. The defence in the cross-examination of the prosecutrix, probably to support their alternative, case of consent, elicited the following answers to the questions in the form of suggestions made to the witness:
"It is not correct to say that on the date of the incident, also I voluntarily accompanied the two persons with a view to earn an extra money. It is not correct to say that those two persons did not threaten me and intimated and forcibly took me to the terrace."
"It is not correct to say that I, voluntarily slept on the terrace and offered myself for sexual intercourse. I was made to sleep near the tank of water. There were some scratches on my back. It is not correct to say that on my own I ran down to the terrace and went to the R.C.F. police chowky. I narrated the incident to the R.C.F. Police chowky."
The prosecution mainly placed reliance on the aforesaid suggestions made in support of their case. These suggestions, in our view, lend assurance to the prosecution case.
20] In my considered view, the prosecution has proved sexual intercourse. The burden was on the accused to prove that the prosecutrix consented to the sexual intercourse. This burden has not been discharged by the accused.
::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 30 21] The learned counsel for the accused has relied on the judgment of the Hon'ble Supreme Court in State of Karnataka vs. F. Natraj 2015(10) SCALE 495 and in particular paragraph 16 which reads thus:
16. In the present case, the gaps in the evidences of the prosecutrix and the medical officer make it highly improbable that sexual intercourse took place. It would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be stated with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. The accused-respondent is, therefore, entitled to benefit of doubt.
22. The observations of the Hon'ble Supreme Court are in the context of the finding that the evidence of the prosecutrix is not reliable. The learned counsel for the accused has also relied on Alamelu and another v. State, referred to supra. But then, in Alamelu and another v. State, the prosecution version was found to be inherently incredible. The prosecutrix was staying with the accused for some days, both claimed in unison that they were a married couple, the prosecutrix did not make any complaint nor did she make any attempt to run away during the period when she ::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 31 and the accused were residing with each other. A perusal of paragraph 46 of the judgment in Alamelu and another v. State would reveal that the reliance on the said judgment is absolutely misplaced to the extent the judgment is relied upon to buttress the submission that the conviction must not be based on the uncorroborated testimony of the prosecutrix. 23] The reliance on the Narender Kumar vs. State (NCT of Delhi) 2012 (7) SCC 171 is again misplaced. In the light of the evidence on record, the testimony of the prosecutrix did not inspire confidence. The evidence of the prosecutrix was found suffering from serious infirmities and the prosecutrix made deliberate improvement on material points, is the finding recorded by the Hon'ble Supreme Court.
24] On a holistic appreciation of the evidence on record, I have no hesitation in recording a finding that the prosecution, with the aid of section 114-A of the Evidence Act and explanation (1) to section 376 (2)(g) of the I.P.C. as the provision then stood, has proved the offence under section 376 (2)(g) of IPC and under section 354 read with section 34 of I.P.C. beyond reasonable doubt.
::: Uploaded on - 26/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: apeal424.02.J.odt 32 25] The appeal is sans merit and is rejected.
26] The bail bond shall stand cancelled.
27] The accused be taken into custody forthwith to serve
the sentence.
JUDGE
NSN
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