Madhya Pradesh High Court

Naresh vs The State Of M.P. on 14 October, 2022

Author: Anjuli Palo

                            1                   Cr.A. No.2222/1998




    IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                        BEFORE
            HON'BLE SMT. JUSTICE ANJULI PALO
                  ON THE 14th OCTOBER, 2022

            CRIMINAL APPEAL No.2222 of 1998

Between:-

            NARESH    S/O       SHRI   SHARDA    PRASAD
            WARDHAN, AGED 35 YEARS, R/O VILLAGE
            MUDIYA,    P.S.      SHAHPURA,      DISTRICT
            JABALPUR (M.P)




                                                      .....APPELLANT
            (BY    SHRI         NARENDRA       CHOUHAN,
            ADVOCATE)

                                     AND

            THE    STATE        OF    MADHYA    PRADESH
            THROUGH P.S LAKHNADOUN, DISTRICT
            SEONI (M. P)



                                                    .....RESPONDENT

             (BY SHRI PRASANNAJEET CHATTERJEE,
             PANEL LAWYER)
                             2                   Cr.A. No.2222/1998


..........................................................................................
      Reserved on :- 15.09.2022

      Passed on :- 14.10.2022
..........................................................................................

This revision coming on for final hearing this day, the court passed
the following:

                          JUDGMENT

This appeal has been preferred against the judgment of

conviction and order of sentence dated 08.09.1998 passed by the

Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of

Attrocities) Act, in Special Case No.183/97 whereby the appellant

has been convicted under Section 376(2) of IPC and sentenced to

undergo RI for 10 years & fine of Rs.5000 with default stipulation.

2. As per prosecution story, the prosecutrix is a married lady.

She was living with her husband and other family members. On

11.06.1997, in the evening, the prosecutrix saw that her husband

Lakhan P.W-3 was coming shouting towards the house and the

accused persons were chasing him. The prosecutrix tried to save

Lakhan but they did not agree and kept on chasing him. When he

did not get caught, they went back to the prosecutrix and used

filthy language. Accused Badri encouraged other accused persons

to rape her, thereafter, appellant Naresh untied her saree and threw

her on the floor. Appellant Dayalu caught hold her and Naresh

forcibly committed rape with her. The other accused persons

Karan and Badri stood there guarding. After commission of rape,

they also tried to took her to other place (Badri Maharaj ke ghar)

forcibly for continuing the same crime with her then lot of people

gathered there, thus, the accused persons left her and fled away

from the spot. The prosecutrix narrated all the incident to the

village Chowkidar namely Bhagwat Prasad and requested to

accompanied her for lodging the report to police station but

Kotwar refused for it. Then she went to Ramji Patel's house and

along with him she went to police station and lodged FIR against

all the accused persons. Police lodged FIR Exhibit-P/1 against

them and started investigation. After completing the investigation

charge-sheet was filed against them under Section 376 (2) of IPC

and 3(1)(2) of Scheduled Caste and Scheduled Tribe (Prevention

of Atrocities) Act.

3. The trial was conducted by the trial Court and evidence of

the prosecutrix witnesses were recorded there. After considering

the testimony of prosecutrix and other witnesses, learned trial

Court found the prosecution case trust worthy and reliable and

proved against the appellant beyond any reasonable doubt. Thus,

appellant Naresh was convicted under Section 376(2)(g) of IPC.

After convicting him, he has been sentenced for 10 years with fine

of Rs.5000/- with default stipulation.

4. This finding and sentence has been challenged by the

appellant on the ground that the case was falsely made by the

prosecutrix due to old enmity with her husband and the appellant.

Prosecutrix is married and old woman. It is impossible that in the

presence of others, Naresh committed rape with the prosecutrix.

Further that her testimony is not corroborated with medical

evidence. Learned trial Court appreciated the prosecution evidence

by ignoring the material contradictions and also considering that

the FIR is belated and convicted the appellant. Thus, he prayed to

set aside the impugned judgment and acquit him.

5. In this case, admittedly, the prosecutrix is a married lady,

aged about 28 years but it is not a rule that just because

prosecutrix is a married lady her testimony be treated as

unreliable. Rule for corroboration cannot be strictly followed in

each case. Particularly in the rape cases the sole testimony of the

prosecutrix can be the basis of conviction of the accused persons if

it found cogent, trust worthy and reliable.

6. In the present case, from the statements of the prosecutrix

(P.W-1) and her husband Lakhan (P.W-2) it appears that the

appellant was known to them. The incident started from the

quarrel in between Lakhan P.W-2 and the appellant. In FIR itself it

was mentioned that in the evening, at about 8 PM, Lakhan went to

the village to purchase bidi. Her wife was at home. Appellant

Naresh came there, he abused him so Lakhan asked him about the

reason then Naresh started to assault him. Other accused persons

also came there then he ran away from the village towards his

house. All the accused persons including appellant chased him.

When he reached his house, his brother and sister-in-law came

there to save them, even then, the appellant and other accused

persons continued to chase him so he ran away to the distant place

and appellant along with other accused persons returned back and

appellant committed rape with the prosecutrix. At that time, her

husband Lakhan was hiding in the house of Gannu Chamar. At

night about 9 PM when he returned back to his house, his wife

narrated the incident that the appellant Naresh committed rape

with her.

7. As per FIR the prosecutrix P.W-1 stated against the

appellant that after untying her saree before the other accused

persons, he forcibly committed rape with her. But during the

incident when she shouted, some people gathered there then the

accused persons left her and fled away from the spot. She also

stated that Kotwar Bhagwat did not help her to lodge report then

she went to police station with Ramji Patel at about 3 a.m and

lodged FIR (Exhibit-P/1). It is important to mention here that her

husband was not present there. His brother P.W-3 (Prabhu) partly

supported the testimony of prosecutrix stating that the appellants

and other accused persons caught hold her and taken to the village.

Due to fear along with his brother he also fled from the spot.

8. Ramji Patel (P.W-9) also corroborated their testimony. P.W-

8 (Suman) stated that appellant and other accused persons Dayalu

and Karan caught hold the prosecutrix. Badri was present there

and Naresh was untieding her saree. P.W-7 Seema is her elder

sister-in-law. She also supported the statements of above

witnesses. She further stated that when she tried to save her, the

appellant and other accused persons also threatened her to rape her

therefore, she did not attempt to save the prosecutrix and fled

away towards Natwara.

9. P.W-4 (Bhagwan Das) partly supported the prosecution case.

He saw that the appellant and others were chasing/repulsing one

man. He further stated that thereafter they caught hold the

prosecutrix and pushed her so that she fell down. P.W-5 (Bhagwat

Prasad) partly supported the testimony of P.W-1. He stated that on

the date of incident, just after the incident the prosecutrix came to

his house and narrated against the appellant, Dayalu and Karan

which shows the conduct of the prosecutrix.

10. From the statements of above witnesses it appears that

appellant along with three other accused persons was present at the

spot and they threatened them not to intefere and appellant

committed rape with the prosecutrix. Further that, P.W-11

Investigating Officer is the material witness who recovered a pink

saree from the spot. As per the statement of the prosecutrix it was

removed by the appellant from her body during the incident. He

has also recovered some other incriminating articles such as some

broken bangles in green colour which shows that force was used

by the appellant on the prosecutrix to commit rape with her.

11. Learned counsel for the appellant strongly contended that

the prosecutrix was a married lady and doctor who examined her,

did not find any external or internal injury on her. It is not a rule

that in every case injury will be material proof. Though P.W-14

(Smt. S.Chakraborti) did not give any definite opinion and also not

found any injury on her but the testimony of the prosecutrix itself

proved the offence against appellant. Her testimony is cogent and

trustworthy, thus, learned trial Court rightly relied on it to commit

the appellant.

12. Learned Panel Lawyer for the respondent/State has

vehemently opposed the aforesaid argument and strongly

supported the impugned judgment.

13. It is a settled principle of law that conviction of accused can

be based on the sole testimony of the victim/prosecutrix with or

without corroboration. The Hon'ble Supreme Court in a case of

Phool Singh Vs. State of Madhya Pradesh reported in (2022) 2

SCC 74 held as under:

"There can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.

As a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. Sole testimony of the prosecutrix should not be doubted by the court merely on basis of assumptions and surmises. Testimony of the victim 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 the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Further, seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

14. In para 8 of the judgment passed in Phool Singh (supra), the

Supreme Court observed as under:

"In Ganesan Vs. State, (2020) 10 SCC 573, this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix."

15. In this regard, it is also worth referring to Mukesh Vs. State

of Chhattisgarh reported in (2014) 10 SCC 327, Madhukar

Makaji Mudgul Vs. State of Maharashtra reported in 2022 SCC

Online Bom 1674 and Ismal Mian Vs. State of Bihar reported in

2022 SCC Online Pat 1579.

16. Mere because prosecutrix is a married lady, it does not mean

she would not have objection to commit rape with her. It is not a

case of her consent. On the other hand, she was forcefully

compelled to surrender before the appellant and the other accused

persons, who were ready to cause injury to her.

17. In the light of the evidence adduced by the prosecutrix and

the facts which have been found proved by the trial Court, it is