Karnataka High Court
Raju S/O. Satyappa @ Shivappa Ramagol vs The State Of Karnataka on 20 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 2594 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO.2594 OF 2013 (C)
BETWEEN:
RAJU S/O SATYAPPA
@ SHIVAPPA RAMAGOL @ KHAJAGONATTI,
AGE 31 YEARS,
OCC: VETERINARY PRIVATE WORK,
R/O MANNKERI,
TQ & DIST: BELGAUM.
...APPELLANT
(BY SMT.NAGARATHNA S PATTAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH KAKATI POLICE STATION
NOW REP. BY SPP, HIGH COURT OF
KARNATAKA, DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C.
Digitally
signed by PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ANNAPURNA ORDER OF SENTENCE DATED 18.03.2013/19.03.2013 PASSED BY
CHINNAPPA THE PRL. SESSIONS JUDGE, BELGAUM IN SESSIONS CASE
DANDAGAL
NO.291/2011, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
Location:
HIGH COURT 452 AND 376 OF IPC AND ACQUIT THE APPELLANT, IN THE
OF INTEREST OF JUSTICE.
KARNATAKA
DHARWAD
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 2594 of 2013
JUDGMENT
Heard the further arguments of Smt.Nagarathna S. Pattar, learned counsel for the appellant and Sri Ramesh Chigari, learned High Court Government Pleader for respondent-State.
2. The present appeal is filed challenging the judgment dated 18.03.2013 and order of conviction dated 19.03.2013 passed in S.C.No.291/2011 on the file of Principal District and Sessions Judge, Belagavi ("the Trial Court" for short).
3. The brief facts of the case are as under:
Appellant was prosecuted for the offences punishable under Sections 452 and 376 of the Indian Penal Code ("IPC" for short) upon charge sheet filed by the Kakati Police, Belagavi District.
4. Genesis of the case on hand started with a complaint being lodged by the victim lady to Kakati Police on 24.06.2010 stating that she is the native of Bukyal and -3- CRL.A No. 2594 of 2013 her husband's place is Mannikeri and she got married in the year 2002 and she is having two sons. Her husband is serving in the Indian Military and therefore she is living with her father-in-law and mother-in-law with her children.
5. Accused is the neighbour and on 23.06.2010 when her parents-in-law had been to agricultural land at about 12.00 noon, she was cooking. During cooking, she was feeding her younger son aged about 10 months.
6. At that juncture, accused suddenly entered the house and pushed the child and her mouth was gagged and thereafter committed forcible sexual intercourse. She raised sufficient alarm, but the same was futile.
7. On hearing the alarm raised by the victim lady, neighbours came there. But despite the same, the accused accomplished the act of forcible sexual intercourse, whereby she started bleeding and immediately informed her husband over telephone. Her husband in turn -4- CRL.A No. 2594 of 2013 telephoned to his cousin by name Sri Santosh Rama Sambaji. He came there on a motorcycle and took her to military hospital for treatment. The doctor at military hospital gave her first aid treatment and sent her to District Government Hospital. Accordingly, a complaint came to be lodged by the victim and sought for action against the accused.
8. On receipt of the complaint, the Kakati Police registered a case in Crime No.210/2010 for the offences punishable under Sections 452 and 376 of IPC and investigated the matter thoroughly.
9. Presence of the accused was secured before the Trial Court and charges were framed.
10. The accused pleaded not guilty, therefore the trial was held.
11. In order to establish its case, the prosecution in all examined 15 witnesses as PWs.1 to PW.15 and relied on 21 documentary evidences which were exhibited and -5- CRL.A No. 2594 of 2013 marked as Exs.P.1 to P.21. Ten material objects were also relied on by the prosecution, which were marked as MOs.1 to 10.
12. On conclusion of the prosecution evidence, the accused statement as contemplated under Section 313 of Cr.P.C. was recorded. The accused has denied all the incriminatory circumstances, found against him. He did not choose to lead defence evidence nor file any written submission as is contemplated under Section 313(5) of Cr.P.C.
13. Thereafter, the learned Judge heard the parties in detail and passed the judgment and order of conviction and sentenced the accused as under:
"The accused has to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default of payment of the fine amount, he has to further undergo imprisonment for three months for the offence committed under Section 452 of the IPC.
The accused has to undergo rigorous imprisonment for ten years and to pay a fine of -6- CRL.A No. 2594 of 2013 Rs.25,000/- and in default of payment of fine amount, the accused has to further undergo imprisonment for six months for the offence committed under Section 376 of the IPC.
Both the above sentence shall run
concurrently."
14. Being aggrieved by the same, the accused preferred this appeal with the following grounds challenging the impugned judgment.
The impugned judgment of conviction and order of sentence is against the material evidence on record and is liable to be set aside by this Hon'ble Court.
The ingredients of the offence punishable under section 452 and 376 of IPC have to be established beyond reasonable doubts and cogent evidence. But the prosecution has failed in doing the same.
It is submitted that the prosecution in order to prove the guilt of the accused in all has examined 15 witnesses as PW1 to PW15 and got marked the documents Ex.P.1 to Ex.P21 and also got marked the material objects at M.O.s 1 to
10. Out of the said witnesses PW1 is the -7- CRL.A No. 2594 of 2013 complainant/victim, PW2 is the husband of the complainant, PW3 is a person who took the complainant to the hospital as per prosecution, PW4 is the eye witness to the extent that he had saw the accused entering the house of complainant, PW5 is pancha witness to the spot mahazar Ex.P.3, PW6 is a pancha witness to the seizure of cloths of the victim and accused i.e. Ex P5 and P6, PW7 is a doctor, District Hospital, Belgaum who examined accused and issued report at Ex.P.7, PW8 is also a doctor, District Hospital, Belgaum who examined victim and issued medical certificate at Ex.P.8, PW9 is also doctor working in BIMS, Hospital who issued medical certificate in respect of victim at Ex.P.10, PW10 is a Pathologist in Military Hospital, Belgaum who sent requisition to the CPI at Ex.P.13, PW11 is an ASI, Kittur, P.S. who recorded the complaint at Ex.P.1, PW12 is the PSI, Kakati P.S. who registered the FIR at Ex.P.15, PW13 is a constable who brought the sealed article from the hospital and submitted report at Ex.P.16, PW14 is the Investigation Officer and also he drawn rough sketch map of the scene of occurrence at Ex.P.17 and PW15 is a police constable who brought four sealed articles and produced before the CPI and report at Ex.P.21.-8- CRL.A No. 2594 of 2013
It is submitted that out of the above said witnesses PW4 who is an eye witness to the extent that he had saw accused entering in the house of victim/PW1, has turned hostile, PW6 who is pancha witness to the seizure of cloths of victim & accused at Ex.P.5 & Ex.P.6 has turned hostile. PW2 is the husband of the victim, PW3 is the relative of PW2, PW5 who is pancha witness to Ex.P3 spot mahazar is younger brother of mother of PW2 and all these witness are related and interested witness and hence their evidence cannot be reliable.
It is submitted there are no eye witness to the alleged incident and so also no independent witnesses to the alleged incident. The entire story cooked up by the prosecution with the help of related and interested witness and the lower court has failed to consider the same and has erred in convicting the appellant.
It is submitted in the complaint at Ex P.1 it is mentioned that the neighbours told the accused not to commit the rape, but even then he committed the rape. If that is a case then what prevented the prosecution to examine those neighbours who told accused not to commit the rape. The statement of the complainant itself is going to falsify the case of the prosecution.-9- CRL.A No. 2594 of 2013
It is submitted that the complainant/victim could have raised hue and cry and the evidence of PW4 goes to show that there are shops, hotels nearer to the house of PW1. If really such incident has taken place. Then the peoples who were present in those shops and hotel they came to know about the incident.
It is submitted that CW6 Smt. Laxmi & CW7 Khimani who are mother-in-law and father-in- law of the PW1 are not all examined before the court purposely. Non-examination of CW6 & 7 withheld one of the material and most important witness and hence, adverse inference has to be drawn as to the case of the prosecution.
It is submitted that there is nothing in the medical evidence and even the FSL report is also not helpful to the prosecution case as regarding the presence of spermatozoa there is negative finding. And even FSL report is taken into consideration, the blood group is not tallied and there is no finding of the FSL regarding the blood group. Looking to the evidence of prosecution witnesses it is contrary to each other and even looking to the medical opinion there is no supporting material and opinion by the Doctors that there is a rape. And even as per Ex.P.8 and Ex.P.11 it is clearly mentioned that there is no
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evidence of rape at all. And even as per the opinion of PW9 Doctor at Ex.P11, such injury to cervix (paracervical tear) as mentioned by gynecologist could be caused by either forcible sexual intercourse or old injury during delivery being opened up or any foreign body in the vagina. The prosecution utterly failed to prove its case beyond all reasonable doubt and hence impugned conviction is liable to be set aside.
There are no direct witnesses to the incident which has taken place. The prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt has to be given to the appellant herein.
The prosecution has failed to establish the ingredients of the offence alleged against the appellant and the evidence of the witnesses does not support the case of the prosecution.
The sentence imposed is too harsh. The appellant may be allowed to urge additional grounds at the time of Admission, arguments and final hearing, to meet the ends of justice."
15. Smt.Nagarathna S.Pattar, learned counsel for the appellant reiterating the grounds urged in the appeal, contended that the case of the prosecution is doubtful
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CRL.A No. 2594 of 2013having regard to the very contents of the complaint itself inasmuch as the incident said to have been taken place in the dwelling house of the complainant at 12.00 noon and though she raised alarm and public gathered there, accused has committed forcible sexual intercourse cannot be believable, especially in the rural area and thus, sought for allowing the appeal.
16. She has also contended that, absence of spermatozoa in the articles seized by the police clearly indicate that, there was no forcible sexual intercourse committed by the accused to the victim and in order to have the civil dispute settled, false complaint came to be lodged against the accused who is neighbour of the complainant and thus sought for allowing the appeal.
17. Per contra, learned High Court Government Pleader supports the impugned judgment by contending that in a matter of this nature, the Court can very well place reliance on the sole testimony of the prosecutrix and record an order of conviction if the testimony inspires
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CRL.A No. 2594 of 2013confidence in the Court and corroboration is necessary as is held in various judicial pronouncements.
18. He also pointed out that in the case on hand, the evidence of PW.3-Santosh who is the cousin of the husband of PW.1 has supported the case of the prosecution in narrating the incident as PW.1 has immediately narrated the incident to her husband who is working in the Indian Army, who in turn directed PW.3 to visit the house and take the victim lady to the hospital.
19. The doctor who treated the victim lady at the first instance in Military Hospital is examined as PW.10 has also supported stating that the victim lady approached the hospital and the Major Chetan Jambagi treated the victim lady in the Hospital and gave first aid treatment who has observed that there was a sexual assault and vaginal bleeding.
20. He further pointed out that the corroboration to the testimony of PW.1 is very much available on record
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CRL.A No. 2594 of 2013which would strengthen the case of the prosecution and therefore sought for dismissal of the appeal.
21. In view of the rival contentions of the parties, this Court perused the material on record meticulously.
22. After such perusal, following points would arise for consideration.
i. Whether the prosecution has successfully established all ingredients to attract the offence punishable under Sections 452 and 376 of IPC?
ii. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?
iii. Whether the sentence is excessive?
23. Regarding Point Nos.1 & 2 :- In the case on hand, in order to establish the case of the prosecution, victim lady is examined as PW.1. She has supported the case of the prosecution by deposing in verbatim with the contents of the complaint. She reiterated about the forcible sexual intercourse that took place on 23.06.2010
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CRL.A No. 2594 of 2013around 12.00 noon in her house. She has deposed with graphic details of the incident that occurred and the accused committing forcible sexual intercourse when she was feeding her younger son, taking advantage of absence of her parents-in-law.
24. She has also deposed about, the telephone call made to her husband who is working in Indian Military Services, who in turn directed his cousin Sri Santosh to visit the house of the victim immediately and take her to the hospital.
25. She also deposed about her husband's cousin PW.3-Santosh visiting the house and taking her to military hospital at the first instance and thereafter, she was referred to Government Hospital.
26. In her cross-examination, no doubt it is admitted that she had undergone family planning surgery about 4 months prior to the incident. However, she denied further suggestions that she developed some complication
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CRL.A No. 2594 of 2013and therefore she visited the military hospital for treatment.
27. The other suggestions made to the witness that she is deposing falsely are all denied by her.
28. PW.2 is the husband of the complainant, who got information over telephone immediately after the incident when he was serving the Indian Military and thereafter intimating PW.3 to take her to the hospital. His evidence is formal in nature.
29. However, in his cross-examination, suggestion made to him that, his wife has given false complaint is denied by him.
30. Cousin of PW.2, Santosh is examined as PW.3 who supported the case of the prosecution stating that on receiving the phone call from PW.2, he went to the house of PW.1 and took her to Military Hospital on his motorcycle. In his cross-examination he admits that, PW.1 is his relative, hotels and shops are situated near to the
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CRL.A No. 2594 of 2013house of PW.1 at the distance of 300 feet and he also admits that there would be people in and around the hotels and shops. He has answered that PW.2 used to contact him earlier also.
31. It is tried to be suggested that, father-in-law of PW.1 had a fall and had a fracture and therefore he was very much available in their house. Witness has answered that no doubt father-in-law of PW.1 had sustained fracture about 10-15 years earlier and he has been cured and he now properly attending his day to day work including the agricultural operations. Other suggestions made to him are denied.
32. Pancha witness to Ex.P.2-Mahazar is PW.4. He did not support the case of the prosecution.
33. PW.5 is the co-pancha to Ex.P.3-Mahazar and Ex.P.4-Photograph he has supported the case of the prosecution. His evidence is formal in nature.
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CRL.A No. 2594 of 201334. PW.6 is another pancha to Ex.P.5 and Ex.P.6 which are clothes seizure mahazar. He has not supported the case of the prosecution.
35. PW.7 is the doctor, who examined the accused about the potency of the accused and issued the certificate vide Ex.P.7 and supported the case of the prosecution. He specifically deposed about the capability of the accused to perform sexual intercourse. In his cross-
examination, suggestion made to him that he has given a false report is denied by him. He has answered that the accused himself told about committing rape on PW.1 at the time of examination.
36. PW.8 is the lady doctor who examined the victim lady on 23.06.2010 at District Hospital, Belagavi.
She deposed about the physical examination of the victim lady and issued a certificate vide Ex.P.8 and requisition vide Ex.P.9.
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CRL.A No. 2594 of 201337. PW.8 in her cross-examination admits the suggestions that, except the bleeding in vagina all other things were normal with PW.1. She denied the suggestion that, the bleeding was as a result of tubectomy surgery conducted about 4 months earlier.
38. PW.9-Dr.Kirankumar Gude, is the Casuality Medical Officer, BIMS Hospital, Belagavi. He has given opinion after verifying the report given by the Gynecologist and Radiologist insofar as the victim lady is concerned. His evidence is also formal in nature.
39. Except suggesting that he has given a false report, which has been denied by PW.9, no other useful materials are elicited in his cross-examination.
40. PW10 is Doctor Major Gourav Pratapsingh Gahalot who is the Pathologist in the Military Hospital, Belagavi. He deposed that on 23.06.2010, PW1 visited their hospital who was examined by Major Chetan Jambagi who was the duty Medical Officer and while examining the
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CRL.A No. 2594 of 2013said Chetan Jambagi has noted vaginal bleeding and they issued requisition vide Ex.P13 and the patient was referred to gynecologist. In his cross-examination, no useful material is elicited.
41. PW11 is the Assistant Sub-Inspector who received the complaint on 24.06.2010 by visiting the Civil Hospital, Belagavi. On receipt of the complaint, he brought back the same and registered the case. In his cross-
examination also, no useful material is elicited.
42. Police Inspector who registered the case is examined as PW12, who deposed about the receipt of complaint from PW11 and registered the case in APMC Police Station.
43. PW-13 is the Woman Constable who brought the clothes which were seized by the doctor in sealed condition and handed over to the Investigation Officer.
44. PW14 is the further Investigation Officer who deposed about conducting mahazar sending the victim
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CRL.A No. 2594 of 2013lady for medical treatment obtaining necessary reports conducting cloth seizure mahazar and filing the charge sheet. In his cross-examination, it is elicited that on receipt of the further investigation papers from Police Sub-
Inspector, he immediately visited Mannikeri village and deputed woman constable to look after PW1 in civil hospital. The suggestions made to him that he is falsely deposing and his investigation is incorrect is denied by him.
45. PW15 is the Police Constable who carried the seized article to the Forensic Science Laboratory. His evidence is formal in nature. The above evidence on record is sought to be re-appreciated by the counsel for the appellant. In order to prove the offence under Section 452 IPC, following ingredients sought to be proved.
452. House-trespass after preparation for hurt, assault or wrong-ful restraint.-- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining
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CRL.A No. 2594 of 2013any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
So also in order to prove the offence, Section 376, the prosecution has to prove the following ingredients.
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 extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever,--
(a) being a police officer, commits rape--
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officers' custody or in the custody of a police officer subordinate to such police officer; or
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CRL.A No. 2594 of 2013(b) being a public servant, commits rape on a woman in such public servants' custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the central or a state government commits rape in such area; or
(d) 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 women's or children's instruction, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
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CRL.A No. 2594 of 2013(i) commits rape on a woman when she is under sixteen years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that persons natural life, and shall also be liable to fine:
46. With the above legal requirements, if the material on record is appreciated, it is the categorical say of the complainant that she is acquainted with the accused who is the neighbour and on 23.06.2010 when she was
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feeding her younger son aged ten months, accused illegally trespassed into the house and taking advantage of the parents being not in the house, committed forcible sexual intercourse by gagging the mouth of PW1. No doubt in the complaint itself, there is a mention that she raised the alarm, in and around persons came there and tried to rescue. However, accused forcibly committed sexual intercourse whereby she started bleeding from her vagina. Immediately the incident was brought to the notice of her husband over telephone. Her husband, who is working in Indian Military, contacted his cousin-PW3 to visit the place of incident and take PW1 to the medical care. Accordingly, PW3 visited the house of PW1 and took her to Military Hospital at the first instance on his motorcycle. Thereafter as per the advice of the doctors at Military Hospital after getting his aid, the victim lady is shifted to Civil Hospital, Belagavi. On receipt of the information, Assistant Sub-Inspector visited next day and took the complaint from PW1 and thereafter, handed it
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CRL.A No. 2594 of 2013over to the Police Sub-Inspector for registration of the case. APMC Police after registering the case conducted detailed investigation.
47. In a matter of this nature, the sole testimony of the victim lady would be sufficient to record an order of conviction if the same is inspiring confidence in the Court.
In the case on hand, in the cross-examination of PW1 no such material is elicited so as to shake the credibility of the testimony of PW1. No doubt, a feeble attempt is made by suggesting to her that she had undergone tubectomy surgery about ten months earlier to the incident and the complication thereof resulted in vaginal bleeding. The same is denied by the victim lady. Similar suggestion was also made to the expert i.e. the doctor who treated the victim lady. The doctor also denies the suggestion emphatically.
48. Therefore, it could be seen from the material evidence on record that the testimony of PW1 has not been shaken to any extent nor discredited by eliciting
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CRL.A No. 2594 of 2013necessary answers in the cross-examination. It is needless to emphasise that the purpose of the cross-examination is to discredit the testimony of the witnesses. In the case on hand, except making some stray suggestions which were denied, no useful material is elicited in the cross-
examination of PW1 or for that matter PW3. Therefore, the trial Court has rightly appreciated the material evidence on record and has come to the conclusion that the prosecution is successful in establishing all the ingredients referred to supra to attract the offences punishable under Section 452 and 376 IPC.
49. On re-appreciation of the entire material evidence on record and in the light of the grounds stated in the appeal, this Court is of the considered opinion that a mere fact of few people trying to rescue the accused and despite the same, accused accomplishing his act and forcible intercourse with the victim lady as is mentioned in the complaint would not be sufficient enough to hold that the case of the prosecution is either doubtful or artificial.
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CRL.A No. 2594 of 2013The defence raised is that in order to have an upper hand in the pending boundary dispute between the accused and complainant family, a false case has been filed. However, the said suggestion remains as a suggestion on record without there being any plausible proof placed on record.
50. Admittedly, no explanation is forthcoming in the accused statement except denying the incriminatory circumstances. Nor any material is placed before the Court so as to probablize the defence taken by the accused that in order to gain upper hand in the pending civil dispute, false complaint came to be filed. The accused for the reasons best known to him, did not lead any defence evidence nor offered any written explanation as is contemplated under Section 313(5) Cr.P.C.
51. The alternate theory put forth by the accused that vaginal bleeding noticed by the doctor is on account of the complications that occurred due to the tubectomy surgery would also remain on record without there being
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CRL.A No. 2594 of 2013any plausible proof or any material evidence placed on record.
52. Insofar as appreciation of testimony of PW1 is concerned, it is settled principles of law and requires no emphasis that the testimony of PW1 alone could be the basis for recording an order of conviction in a matter of this nature. In this regard, gainfully, this Court places reliance on the judgment of the Hon'ble Apex Court in the case of Phool Singh V/s State of Madhya Pradesh reported in 2022(2) SCC 74, their Lordships in Paragraphs 7 to 17 have held as under:
"7. 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 sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has with stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent
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witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned, the aforesaid has no substance.
8. In Ganesan, 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 the 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. In paragraphs 10.1 to 10.3, it is observed and held as under:
"10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98) "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this
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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 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
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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."
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CRL.A No. 2594 of 201310. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] 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
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CRL.A No. 2594 of 2013form, 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 [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384], 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
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CRL.A No. 2594 of 2013the 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.
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CRL.A No. 2594 of 2013In 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
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CRL.A No. 2594 of 2013the 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."
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere 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 [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence
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CRL.A No. 2594 of 2013of 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. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].
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.
10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130], it 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 and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
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CRL.A No. 2594 of 201310.3. 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) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21]. 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 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
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CRL.A No. 2594 of 2013position 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
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CRL.A No. 2594 of 2013precise, 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 in 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."
9. In the case of Pankaj Chaudhary (supra), it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:
"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 [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. 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
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prosecutrix cannot be 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. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."
10. In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, 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
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CRL.A No. 2594 of 2013amounts to adding insult to injury. In paragraphs 6 and 7, it is observed and held as under:
"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 case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual
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molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (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 is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of
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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 [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635)."
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.
12. Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be a case of consent is concerned, the aforesaid has no substance at all. No such question was asked, even remotely, to the prosecutrix in her cross-
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CRL.A No. 2594 of 2013examination. Therefore, the aforesaid submission is to be rejected outright.
13. Now so far as the submission on behalf of the accused that the learned trial Court erred in not believing DW1 and erred in not believing the defence and the plea of alibi that on the night of the incident he had gone to Indore and was not present in the village is concerned, at the outset, it is required to be noted that cogent reasons have been given by the learned trial Court not to believe DW1 and not to believe the plea of alibi raised by the accused. DW1 belongs to the same village of the accused. The reason to go to Indore has been disbelieved by the court.
14. It was the case on behalf of the accused and the defence that as one Babulal had met with an accident, DW1 and the accused had gone to Indore taking Babulal and they had stayed at Indore on that night. However, it was found that Babulal had an injury before two months. Defence had not produced the record of the hospital or examined doctor or employee of the hospital where the said Babulal was taken for treatment. According to the defence, they had stayed in the house of Tulsiram at Indore but the said Tulsiram has not been examined. Even the Babulal has also not been examined. Under the circumstances, the learned
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CRL.A No. 2594 of 2013trial Court has rightly disbelieved the plea of alibi raised by the accused and has rightly disbelieved DW1. On appreciation of evidence, the learned trial Court has specifically observed that the deposition of DW1 does not inspire any confidence.
15.. Now so far as the submission on behalf of the accused that there was a delay of three days in lodging the FIR is concerned, at the outset, it is required to be noted that it was the specific and consistent case on behalf of the prosecutrix that immediately on the occurrence of the incident, she narrated the incident to her sister-in-law (Jethani) and mother-in-law but they did not believe the prosecutrix. On the contrary, they beat her. Even no other family members in her matrimonial home supported the prosecutrix and therefore she sent message to her parental house and thereafter she was taken to her parental house and FIR was lodged. It is very unfortunate that in this case the sister-in-law and mother-in-law though being women did not support the prosecutrix. On the contrary, she was compelled to go to her parental house and thereafter the FIR was lodged. Being women at least the sister-in-law and mother-in-law ought to have supported the prosecutrix, rather than beating her and not believing the prosecutrix. Therefore, when in such a situation, the delay has
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CRL.A No. 2594 of 2013taken place in lodging the FIR, the benefit of such delay cannot be given to the accused who as such was the relative.
16. Now so far as the prayer on behalf of the accused to reduce the sentence considering the proviso to Section 376 IPC is concerned, as per section 376 IPC pre-amendment, the minimum punishment shall be seven years. However, as per the proviso, 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. No exceptional and/or special reasons are made out to impose the sentence of imprisonment for a term of less than seven years. On the contrary and in the facts and circumstances of the case, it can be said that accused has been dealt with lightly by imposing the minimum sentence of seven years rigorous imprisonment only. The victim was the relative. Nobody in the family at matrimonial home supported her and she suffered the trauma. She was compelled to go to her parental house and thereafter she was able to lodge the FIR. The accused has come out with a false case/plea of alibi, which is not accepted by the courts below. Under the circumstances, the prayer of the appellant to reduce the sentence and/or to convert
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CRL.A No. 2594 of 2013the sentence from seven years rigorous imprisonment to seven years simple imprisonment is not accepted and it is rejected.
17. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The conviction and sentence awarded to the accused - appellant herein for the offence under Section 376 IPC is hereby confirmed."
53. Applying the legal principles enunciated in the aforesaid decisions to the case on hand, this Court is of the considered opinion that viewed from any angle, the grounds urged in the appeal are not sufficient enough to reverse the finding recorded by the trial Court in convicting the accused for the offences punishable under Section 452 and 376 IPC. Accordingly, Point No.1 is answered in affirmative consequently Point No.2 in the negative.
54. Regarding Point No.3: The trial Court has passed an order of conviction and sentenced the accused as referred to supra. No mitigating material is placed on
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CRL.A No. 2594 of 2013record before this Court to reduce the sentence which has been ordered by the trial Court. Accordingly, Point No.3 is answered in the negative and pass the following:
ORDER The appeal is dismissed. Order of conviction passed by the trial Court is hereby confirmed.
Appellant is granted time till 15.07.2022 to surrender before the trial Court for serving the remaining part of the sentence.
Office is directed to return trial Court records with a copy of this order.
Ordered accordingly.
SD/-
JUDGE EM/CLK