Madhya Pradesh High Court

Kapil Singh Thakur vs The State Of Madhya Pradesh on 26 April, 2023

Author: Rajendra Kumar (Verma)

                                          1
                                                    Criminal Appeal No. 1392/2017.


 IN THE HIGH COURT OF MADHYA PRADESH
              AT JABALPUR

                                    BEFORE
   HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                CRIMINAL APPEAL NO. 1392 OF 2017.


BETWEEN:-

KAPIL SINGH THAKUR S/O SHRI
GOVIND SINGH THAKUR AGED ABOUT
20 YEARS, BY CASTE- NAI R/O
VILLAGE- TEKAPAR, POLICE STATION
SURKHI, DISTRICT SAGAR. M.P.

                                                                 .....APPELLANT

(BY SHRI ASHISH KUMAR KURMI - ADVOCATE )

AND


STATE OF M.P. THROUGH POLICE STATION
SURKHI, DISTRICT - SAGAR M.P.

                                                               .....RESPONDENT

(BY SHRI NAGENDRA SINGH SOLANKI - PANEL LAWYER)


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       Reserved on                            :       21/02/2023
        Pronounced on                         :       26 /04/2023
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                                    2
                                           Criminal Appeal No. 1392/2017.


      This appeal having been heard and reserved for judgment/

order, coming on for pronouncement this day, this Court passed the

following:

                             JUDGMENT

Appellant has preferred this appeal under Section 374 (2) of the

Code of Criminal Procedure, 1973 (for short 'the Code') against the

judgment dated 03.03. 2017 delivered by 7th Additional Sessions Judge,

Sagar, in Special Session Trial No.3900127/2016, whereby the learned

trial Court has convicted the appellant for the offence punishable under

Section 376 (1) of IPC and sentenced to undergo R.I. for 10 years and

fine of Rs. 5000/-, under Section 3(a)/4 of POCSO Act and sentenced

to undergo R.I. for 10 years and fine of Rs. 5000/- with default

stipulations respectively.

2. The prosecution story, in short is that on 19.03.2016 at about

02:00 PM appellant has committed forcible rape with the prosecution

against her will who was a minor on the date of incident. It is further

alleged that appellant-accused has established physical relations with

the prosecutrix many times, on the pretext of marriage. On the

complaint of prosecutrix case was registered. After due investigation,

Criminal Appeal No. 1392/2017.

charge-sheet was filed against the appellant/accused.

3. Appellant was charged for offence as mentioned above. He

abjured his guilt and took a plea that he has been falsely implicated in

the present crime and prays for trial.

4. In support of the case of prosecution, the prosecution has

examined as many as 10 witnesses namely prosecutrix (PW/1), Munni

Bai (PW/2) mother of the prosecutrix, Govind brother of prosecutrix

(PW/3), Uma (PW/4) , Dr. Promise Jain (PW/5), Munnalal (PW/6),

Bharat Singh (PW/7), Manmohan (PW/8), Dr. Kiran Singh (PW/9),

Anurag Sujaniya (PW/10).

5. No witness has been examined on behalf of the appellant in his

defence.

6. Learned trial Court, on appreciation of the evidence adduced by

the parties, pronounced the impugned judgment and finally concluded

the case and convicted the appellant for commission of the said

offence under the provisions of the Act, as stated above.

7. Learned counsel for the appellant submits that the appellant is

innocent and the learned trial Court has convicted the appellant

wrongly without considering the evidence available on record. It is

Criminal Appeal No. 1392/2017.

further submitted that there are material omissions and contradictions

in the statements of the prosecution witnesses but the learned trial

Court has not considered this fact in right aspect and convicted the

appellant. It is further submitted that the learned Court below has

failed to appreciate the prosecution evidence properly and has also in

convicting the appellant. Hence, prays for acquittal of the appellant.

8. Learned Public Prosecutor has opposed the prayer inviting my

attention towards the conclusive paragraphs of the impugned judgment,

learned public prosecutor has submitted that the learned Court below

has convicted the appellant rightly after considering each and every

evidence produced on record by the prosecution. It is further submitted

that all the allegations leveled against the appellant has been found

proved by the learned trial Court, hence, the appellant is not entitled

for any relief and prays for dismissal of the appeal.

9. I have considered rival contentions of the parties and have

perused the record.

10. Prior parting this case it is profitable to go through the decisions

of this Court in the cases of Ganesan v. State, (2020) 10 SCC

573; Santosh Prasad v. State of Bihar, (2020) 3 SCC 443; State

Criminal Appeal No. 1392/2017.

of H.P. v. Manga Singh, (2019) 16 SCC 759; and State (NCT of

Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.

11. In the case of Pankaj Chaudhary (supra), it is specifically

observed and held by Hon'ble the Apex Court that conviction can

be sustained on the sole testimony of the prosecutrix if it inspires

confidence and that there is no rule of law or practice that the

evidence of the prosecutrix cannot be relied upon without

corroboration.

12. At the outset, it is required to be noted that in the present

case, the prosecutrix has fully supported the case of the

prosecution. She has been consistent right from the very

beginning. Nothing has been specifically pointed out why the

testimony of the prosecutrix should not be believed. Even after

thorough cross-examination, she has stood by what she has stated

and has fully supported the case of the prosecution. I see no

reason to doubt the credibility and/or trustworthiness of the

prosecutrix. The submission on behalf of the accused that no other

independent witnesseshave been actually seen the incident the

Criminal Appeal No. 1392/2017.

conviction on the basis of the testimony of the prosecutrix cannot

be sustained is concerned, the aforesaid has no substance.

13. Prosecutrix (PW-1) clearly identify the accused/appellant and

stated that only Kapil Singh had committed rape and other co-accused

had not committed anything. Moreover, during her cross examination

nothing depicts anything which can be disbelieved the version of

prosecutrix. In order to corroborate the prosecution case, another

witness namely Govind (PW-3) has been duly well supported the

prosecution version up to the extent that the accused/appellant dragged

the victim, thereafter, she ran away from the place of incident. The

Investigation officer Anurag Sujaniya (PW-10) also supported the

prosecution case and during the cross examination, nothing elicit that

there was any flaw in the investigation, therefore, the aforesaid

prosecution witnesses duly established the presence of the

accused/appellant on the day and the place of the incident. Moreover,

the evidence was duly supported that the accused/appellant dragged the

prosecutrix and committed rape.

14. In the case of Ganesan (supra), Hon'ble the Apex Court has

observed and held that there can be a conviction on the sole testimony

Criminal Appeal No. 1392/2017.

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 the aforesaid case, this Court had an occasion to

consider the series of judgments of this Court on conviction on the sole

evidence ofthe prosecutrix. This case is much better footing since the

prosecutrix has duly supported the prosecution and Ramla Bai (PW-6)

statement has also duly corroborated.

15. In State of Maharashtra v. Chandraprakash Kewalchand Jain,

(1990) 1 SCC 550] 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: (SCC p. 559, para 16).

16. A prosecutrix of a sex offence cannot be put on a 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 8 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

Criminal Appeal No. 1392/2017.

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 hesitation in accepting her evidence.'

16. In the case of State Vs. Asha Ram; 2006 Crl. L.J. 139, it has

been held as under:-

"it is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault alone to convict an accused where her testimony

Criminal Appeal No. 1392/2017.

inspires confidence and is found to be reliable. It is also well settled principle of law that 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. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

17. In the case of Bharwada Bhoginbhai Hirjibhai V. State of

Gujarat, AIR 1983 SC 753 it has been observed as under:-

" in the Indian setting, refusal to act on the testimony of a victim of sexual assault 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? It was further pointed out that on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding.

The aforesaid observation was made by this Court because of the following factors:

(1) A girl or a woman in the tradition bound non permissive society of India would be extremely

Criminal Appeal No. 1392/2017.

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 neighbors.

(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 or as 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 embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society whereby 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 husbands' family of a married woman, would also more often than not, want to avoid publicity on account of the fear of

Criminal Appeal No. 1392/2017.

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, act as a deterrent."

18. Prosecutrix (PW-1) has categorically stated that she was raped

by accused Kapil Singh. She has been cross-examined at length by

learned counsel for accused. Learned Counsel for accused has failed to

pin point any discrepancy in the statement of prosecutrix. Prosecutrix

has stated that accused has committed rape upon her after removing her

clothes. Other prosecution witnesses have supported the version of the

prosecutrix. The testimony of the witnesses is consistent and there is

not discrepancy in their statements. The testimonies of witnesses are

reliable, trustworthy and inspire confidence and duly corroborated by

other witnesses. There is no reason to disbelieve the statement of

prosecution witnesses.

19. So far as the quantum of sentence is concerned, learned counsel

for appellant submits that appellant is first offender. He has no previous

Criminal Appeal No. 1392/2017.

criminal antecedent. Learned counsel for the appellant further

contended that appellant was 20 years old and the prosecutrix was also

17 years old at the time of incident (19.03.2016) Maximum sentence

for the offence punishable under Section 4 of Protection of Children

from Sexual Offences Act was 7 years at the time of incident, therefore

he prays that jail sentence of the appellant be reduced from 10 years to

7 years.

20. Section 3(a)/4 of Protection of Children from Sexual Offences

Act reads as under:-

Section 3 Penetrative sexual assault A person is said to commit "penetrative sexual assault" if

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra oranus of a child or makes the child to do so with him or any other person; or

Section 4 -Punishment for penetrative sexual assault (1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine.

Section 4 of the Protection of Children from Sexual Offence

(Amendment) Act, 2019 reads as under:-

Criminal Appeal No. 1392/2017.

In the principal Act, section 4 shall be renumbered as section 4(1) thereof and--(a) in sub-section (1) as so renumbered, for the words "seven years", thewords "ten years" shall be substituted.

21. On perusal of the statement of witnesses, evidence on record

medical report and opinion of doctor, considering the facts and

circumstances of the case that appellant was 20 years old and the

prosecutrix was also 17 years old at the time of incident (19.03.2016)

Maximum sentence for the offence punishable under Section 4 of

Protection of Children from Sexual Offences Act was 7 years at the

time of incident, hence the jail sentence of the appellant is reduced

from 10 years to 7 years and the appeal is hereby partly allowed.

22. Conviction of the appellant for the offence punishable under

Section 376 (1) of IPC & under Section 3(a)/4 of POCSO Act is

affirmed but his sentence is reduced from R.I. for 10 years to R.I. for

7 years and fine amount is maintained.