Madhya Pradesh High Court
Naveen vs The State Of Madhya Pradesh on 4 October, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4th OF OCTOBER, 2023
CRIMINAL APPEAL No. 1081 of 2015
BETWEEN:-
NAVEEN S/O CHAGANLAL, AGED ABOUT 21 YEARS,
OCCUPATION: LABOUR VILLAGE AABUKHANA P.S.
BHERUGARH, DISTT. UJJAIN (MADHYA PRADESH)
.....APPELLANT
(SHRI ARJUN AGRAWAL, LEARNED COUNSEL APPEARING AS AMICUS
CURIAE FOR THE APPELLANT)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
BHERUGARH, DISTRICT UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
( SHRI GAURAV SINGH CHOUHAN, LEARNED GOVT. ADVOCATE FOR
THE RESPONDENT/STATE)
(MS. ASTHA CHAUHAN, LEARNED COUNSEL FOR THE RESPONDENT
[COMP].
....................................................................................................................................
Reserved on : 08-08-2023
Pronounced on : 04-10-2023
..................................................................................................................
T h i s Criminal Appeal having been heard and reserved for
order/judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Sushrut Arvind Dharmadhikari passed the following :
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
2
JUDGMENT
With the consent of the parties, the appeal is heard finally.
02. This appeal under Section 374 of Code of Criminal Procedure, 1973
has been preferred by the appellant against the judgment dated 08.07.2015
pronounced by the IXth Additional Sessions Judge, Ujjain in S.T. No.658/2014
whereby the appellant has been convicted under Sections 376(2)(f)(i)(j) of IPC
alongwith 3/4 and 5(m)(n)/6 of the Protection of Children from Sexual
Offences, Act 2012(hereinafter referred to as .... "the POCSO Ac, 2012") and
sentenced him to undergo R.I. for 14 years with fine of Rs.5,000/- under each
sections with default stipulations.
03. The facts of the prosecution case are that, on 19.10.2014, at about
06:30 p.m., victim (PW1), aged about 6 years was playing outside her house, at
that time, appellant came and took her to Kaaliyadeh Mahal by motorcycle and
committed rape upon her. When the victim started crying, the appellant had
slapped and threatened her. Appellant is uncle of the victim. On 20.10.2014, an
F.I.R.(Exhibit-P/2) was lodged at Police Station - Bherugarh, Ujjain on the
basis of intimation given by mother of prosecutrix(PW2).
04. After investigation, the charge-sheet was filed in the matter for the
offence punishable under Sections 376(2)(f)(i)(j) of IPC alongwith 3/4 and 5(m)
(n)/6 of the POCSO Act, 2012.
0 5 . The trial court framed the charges against the appellant for the
offences mentioned above and after discussing and appreciating the entire
prosecution evidence at length, the learned trial court held the appellant guilty of
the said offences and directed him to undergo rigorous imprisonment as
mentioned herein above. Being aggrieved by the said judgment of conviction
and sentence, the appellant has filed this criminal appeal.
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
06. The prosecution has examined as many as nine witnesses in all in this
regard, being the prosecutrix, public witnesses, expert witnesses and police
officials.
07. Learned counsel appearing as amicus curiae f o r the appellant
submits that the appellant is not challenging the finding in respect of kidnapping,
abduction, and sexual intercourse. The present appeal has been preferred by the
appellant stating that there were number of omissions and contradictions in the
evidence of prosecution witnesses. He further submits that the
prosecutrix(PW1) and her mother(PW2) did not support the case of
prosecution and denied the offence of rape committed by the appellant. As per
birth certificate issued by the office of Ujjain Nagar Palika Nigam, the date-of-
birth of appellant is 16.09.1999. The incident took place on 20.10.2014 and,
therefore, at that time of alleged incident, the appellant was juvenile, hence, the
learned lower Court erred in not considering the age of the appellant as per
Juvenile Justice Act. He further submits that the version of the prosecutrix is
unreliable as there are material improvements in her 164 statement as well as in
her statement recorded on oath before the learned Trial Court. He further states
that the prosecution has not been able to establish as to why the appellant being
the maternal uncle of the prosecutrix, would commit rape upon her. He further
states that there are several judgements of this Court as well as the Supreme
Court stating that if there are two views, one pointing towards the guilt of the
accused and another towards his innocence, then the view which is favourable
to the accused must be adopted. Therefore, the appellant could have been
convicted on the basis of such evidence and, hence, it has been prayed that the
judgment pronounced on 08.07.2015 in respect of conviction of appellant be
set-aside and the appellant be acquitted from the aforesaid charges.
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
08. Learned Govt. Advocate for the State as well as learned counsel for
the complainant submits that the prosecutrix as well as the prosecution
witnesses have duly supported the case of the prosecution. He states that the
finding of DNA being similar is enough to retain a finding of conviction. He
further submits that even the medical and FSL reports also supports the
prosecution's case and, therefore, the prosecution has proved its case beyond
reasonable doubt. In the light of the aforesaid, he prays for dismissal of this
criminal appeal
09. We have heard learned counsel for the parties and perused the
record.
10. Under section 29 of the POCSO Act, there is a presumption of guilt
against the accused. The prosecution is only required to lay the foundational
facts which disclose the commission of offence by the accused persons. Once
the same has been done, it is the accused who has to rebut the presumption of
guilt.
11. On perusal of the evidence brought on record, it is found that
it is true that no corroborative evidence is available to connect the appellant with
offence. Thus, the question is whether the conviction of the appellant can be
upheld on the sole testimony of the victim ?
12. The prosecutrix (PW/1) has stated that she is 5 years old and her date
of birth is 09.07.2009. The appellant is the uncle of the victim. The proseutrix
states that on the date of alleged incident when she was playing outside her
house, at that time, appellant came and took her to Kaaliyadeh Mahal by
motorcycle and committed rape upon her. When the victim started crying, the
appellant had slapped and threatened her. On 20.10.2014, an F.I.R.(Exhibit-
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
P/2) was lodged at Police Station - Bherugarh, Ujjain on the basis of intimation
given by mother of prosecutrix(PW2). The report is Ex.P/1 carrying thumb
impression of the prosecutrix in presence of her mother and signature of
prosecutrix's mother(PW2) from 'A to A' part.
13. Learned counsel for the appellant has drawn Court's attention to
medical report(Exhibit P/9) wherein no definite opinion in respect of committing
rape has been given by Dr. Jyoti Gadam(PW4) and submitted that learned trial
Court erred in considering the medical evidence of D.N.A. report which does
not corroborate with the oral evidence. The prosecutrix(PW1), her
mother(PW2) and her grandmother(PW3) have also turned hostile before the
trial Court and had not supported the prosecution case.
1 4 . In the case at hand, the alleged discrepancies which have been
pointed out regarding raising of alarm and threatening the prosecutrix are of a
minor character and do not call into question the veracity of the prosecution‟s
story. The basic version regarding the manner and commission of offence is
constant. The contention of the counsel for the appellant cannot be accepted
that there are contradictions, improvements and inconsistencies in the statement
of the prosecutrix and other material prosecution witnesses. The submission
made by learned counsel for the appellant that there are contradictions in the
statement of the prosecutrix, are of no help to the appellant. These
contradictions are of a minor character which do not shake the quality of the
statement of the prosecutrix. DNA tests are widely used and accepted for its
accuracy. It has been argued by the learned counsel for the appellant that the
D.N.A. report does not corroborate with the oral evidence.
15. Even in the present case, the trial Court has taken into consideration
the cumulative evidence and testimonies of all the witnesses, to arrive at the guilt
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
of the appellant. According to this Court, the impugned judgment of the trial
Court is based on a combined reading of facts and testimonies of the witnesses
and therefore, cannot be faulted.
16. The judgement of the learned Trial Court is well reasoned. Relying on
the statement of the prosecutix and other witnesses, the trial Court has correctly
observed the fact that on the date of alleged incident the appellant took the
prosecuttrix alongwith him, which proves that the offence has taken place and
the same is also corroborated by the testimony of (P.W.2). In addition, it has
also been correctly observed that the DNA profiles generated from the exhibits
were sufficient to prove the guilt of appellant in commission of the offence.
17. The testimony of Dr. Jyoti Gedam(P.W.4) wherein she has explained
that congestion over the area of the body is usually present in injuries which are
less than 24 hours old has also been rightly appreciated by the learned Trail
Court. The learned Trial Court has also rightly observed that the testimony of
the victim alone is sufficient to prove the guilt of the accused and minor
contradictions or insignificant discrepancies in the statement of a prosecutrix
should not be a ground for throwing out an otherwise reliable prosecution case.
18. On perusal of the evidence brought on record, it is found that
it is true that no corroborative evidence is available to connect the appellant with
offence, thus, the question is whether in the case involving sexual harassment,
molestation, etc., the conviction of the appellant can be upheld on the sole
testimony of the victim. In such circumstances, reference may be had to a
recent decision of the supreme Court in the case of Phool Singh v. State of
Madhya Pradesh reported in (2022) 2 SCC 74, the relevant paras of the
same are as under:
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
"10. In State of U.P. v. 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
upon 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 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
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
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 relying upon the
same, as a rule, in such cases amounts to adding insult to injury.
...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
i t s 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
Signature Not Verified
rape is not mere physical assault, rather it often distracts (sic
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
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 Sing h 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
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 an earlier judgment in
Rameshwar v. State of Rajasthan.
14. Thus, the law that emerges on the issue is to the effect that
the 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."
x x x x x
10.2 In Krishan Kumar Malik v. State of Haryana, i t is
observed and held by this Court that to hold an accused guilty
for commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient, provided the same inspires confidence
a n d appears to be absolutely trustworthy, unblemished and
should be of sterling quality.
10.3 Who can be said to be a "sterling witness", has been dealt
with and considered by this Court in Rai Sandeep v. State (NCT
of Delhi). In para 22, it is observed and held as under: (SCC p.
29)
"22. In our considered opinion, the "sterling witness" should be
of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version of
such witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be
relevant is the truthfulness of the statement made by such a
witness. What would be more relevant would be the consistency
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
of the statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be
and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as the
sequence of it. Such a version should have co-relation with each
and every one of other supporting material such as the recoveries
made, the weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version
should consistently match with the version of every other witness.
It can even be stated that it should be akin to the test applied in
the case of circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the accused
guilty of the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all other such
similar tests to be applied, can it be held that such a witness can
be called as a "sterling witness" whose version can be accepted
by the court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version
i n material particulars in order to enable the court trying the
offence to rely on the core version to sieve the other supporting
materials for holding the offender guilty of the charge alleged."
(emphasis in original)
9. In Pankaj Chaudhary, it is observed and held that as a
general rule, if credible, conviction of the accused can be based
on sole testimony, without corroboration. It is further observed
and held that sole testimony of the prosecutrix should not be
doubted by the court merely on basis of assumptions and
surmises. In para 29, it is observed and held as under: (SCC p.
587) "29. It is now well-settled principle of law that conviction
can be sustained on the sole testimony of the prosecutrix if it
inspires confidence. [Vishnu v. State of Maharashtra]. It is well
settled by a catena of decisions of this Court that there is no rule
of law or practice that the evidence of the prosecutrix cannot be
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
relied upon without corroboration and as such it has been laid
down that corroboration is not a sine qua non for conviction in a
rape case. If the evidence of the victim does not suffer from any
basic infirmity and the "probabilities factor" does not render it
unworthy of credence, as a general rule, there is no reason to
insist on corroboration except from medical evidence, where,
having regard to the circumstances of the case, medical evidence
can be expected to be forthcoming. [State of Rajasthan v.
N.K.]."
10. In Sham Singh v. State of Haryana18, it is observed that
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. It is further observed that seeking corroboration of
her statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury. In paras 6 and 7, it is
observed and held as under: (SCC pp. 37-38)
" 6 . We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. 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 the
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
ca se and the court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual molestations
or sexual assaults. [See State of Punjab v. Gurmit Singh (SCC
p. 403, para 21)]
7 . It is also by now well settled that 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
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
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 13 CRA No.5075/2018 an otherwise
reliable prosecution case. The inherent bashfulness of the females
a n d the tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. 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. (See Ranjit Hazarika v. State of Assam.)"
11. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and as observed
hereinabove, we see no reason to doubt the credibility and/or
trustworthiness of the prosecutrix. She is found to be reliable and
trustworthy. Therefore, without any further corroboration, the
conviction of the accused relying upon the sole testimony of the
prosecutrix can be sustained."
19. In view of the above mentioned ratio laid down by the Apex Court, it
is settled position of law that the statement of prosecutrix can be the sole basis
for conviction unless there are cogent reasons for the Court to be hesitant in
believing the statement at its face value or to seek corroboration
20. In the present case, the testimony of the prosecutrix is of sterling
quality and inspires the confidence of this Court. This Court finds no reason to
discredit or disbelief the statement of the prosecutrix. In addition, the statement
of the prosecutrix has also been duly corroborated. The intention of the
prosecutrix in falsely implicating the appellant can also not be made out.
21. Be that as it may, on perusal of the aforesaid evidence on record,
and the aforesaid statements of the witnesses, when tested on the anvil of the
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
decision rendered by the Supreme Court in the case of Phool singh (supra),
this court has no iota of doubt about the culpability of the appellant in the case.
His act is nothing less than diabolic and deserves no sympathy. The appellant
has not been able to rebut the presumption of guilt which operates against him
under section 29 of POCSO Act. The prosecution has successfully proved the
guilt of the appellant in committing the offence beyond a reasonable doubt.
22. In this view of the matter, We find no reason to interfere with the
judgement dated 08.07.2015, passed by the IXth Additional Sessions Judge,
Ujjain in S.T. No.658/2014.
The appeal is accordingly dismissed.
Before parting with the appeal, it would be apt to appreciate the legal
assistance rendered by Shri Arjun Agrawal, as amicus curiae.
The copy of the judgment alongwith the record be sent to the Trial Court
for compliance and necessary action.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
pn
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 04-10-2023
05:21:02
