Madhya Pradesh High Court
Babulal Harnarain And Anr. vs State Of Madhya Pradesh on 20 August, 1993
Equivalent citations: 1994(0)MPLJ489
JUDGMENT S.K. Chawla, J.
1. The two appellants were convicted under Sections 366, 376 and 343, Indian Penal Code and sentenced to R.I. for 3 years under the first count, R.I. for 7 years and fine of Rs. 500-/, in default to further S.I. for 2 months under the second count and R.I. for 6 months under the third count by Additional Sessions Judge, Sheopurkalan. The suspension of their sentence pending the present appeal was refused by this Court. They are, therefore, undergoing the sentences awarded under the impugned judgment and are in jail. Shri J. P. Gupta, senior counsel has however appeared and argued this appeal on their behalf.
2. The prosecution story briefly stated was that on 19-7-1991 Kamla (PW 1), a married woman, aged about 30 years, left her maternal place in Vijaypur in district Guna for her in-laws' place at village Harchanda-ka-Tapra in Rajasthan. Her cousin sister Guddi (PW 4), also a married woman, aged about 23 years, was also accompanying her. Both the women went on foot up to Ruthiyai railway-station. There they boarded a train for Atroo. At Atroo Kamla was informed by two persons, named Girraj and Mukut of her in-laws' village that Kamla's husband had got involved in an accident and was admitted in a hospital of village Baraa. Both the women then left with those two persons in the same train for Baraa. When the train reached Barra at the dead of the night around 24 hours, they started on foot for Baraa Hospital. On way, accused persons came on two motor-cycles. They forcibly made the two women to sit on their motor-cycles, Kamla on the motor-cycle of appellant Mangilal and Guddi on the motor-cycle of appellant Babulal. The appellants took them away to their village Nagda at a distance of about 70 or 80 miles. It was further the prosecution case that appellant Mangilal kept Kamla wrongfully confined in a room and the other appellant Babulal kept Guddi wrongfully confined in another room for about 3 days. During that period, the two appellants repeatedly ravished the women. Ultimately, appellant Mangilal took Kamla to his field and again ravished her. He also gave her Rs. 15,000/- in a bag and let her go. Kamla then lodged a report (Ex. P-3) at Sheopur Police Station on 24-7-1991. She took the police to village Nagda, where Guddi was recovered from the house of appellant Babulal. It was on these facts that the appellants were convicted and sentenced in the manner already indicated, by the trial Court.
3. Certain circumstances stand out very prominently, undermining the prosecution story. Why did Kamla (PW 1) accept such a big sum as Rs. 15,000/- from appellant Mangilal at the time when the latter let her go after 3 days of alleged wrongful confinement? Kamla would have it believed that she was compelled to take that money by Mangilal. Was it compensation, which Mangilal had given to her at the time of leaving her, for having kept her as his wife for 3 days ? Another circumstance appeared in the evidence of Guddi (PW 4). She admitted that photograph (Ex. D-3) was a joint photograph of appellant Babulal and herself, which was taken at a photographer's shop in village Sheopur. That photograph shows appellant Babulal and Guddi in the same manner in which a married couple usually gets itself photographed. That photograph, according to the evidence of Guddi (PW 4), was taken in a crowded locality, where the photo-studio was situated. Her explanation that the photograph was forcibly taken against her will does not at all wash.
4. The story that two persons told Kamla that her husband was involved in an accident and was admitted in a hospital in village Baraa and on hearing that news Kamla (PW 1). and Guddi (PW 4) went in the company of those two persons to village Baraa and further that before they could reach Baraa Hospital two motor-cyclists came on the road and forcibly took the two women on their motor-cycles, despite the presence of the two alleged companions with the women, sounds all make believe. The alleged two persons were also named in the prosecution story as Girraj and Mukut belonging to Harchand-ka-Tapra, which is Kamla's in-laws' village. Those two persons .were not examined by the prosecution for reasons best known to the prosecution. There is also the circumstance that the two women were allegedly forcibly taken on motor-cycles for such a long distance as 70 or 80 miles. Sensing that this was a weak part of the prosecution story, Kamla (PW 1) went to the length of stating that each motor-cycle had two persons on it and that each woman was made to sit on the motorcycle between those two persons. Guddi (PW 4) however told the truth that each motor-cycle had only one person sitting, namely the appellants, who were each driving a motor-cycle.
5. The version of Guddi (PW 4) that she was kept confined in a room of the house of appellant Babulal, was belied by the evidence of no other than Sub-Insptector Tilak Singh Chouhan (PW 10). He deposed that when he reached the house of appellant Babulal in order to recover Guddi, constables who were in his company called out the name of Guddi, from outside the house. At that time, Guddi on hearing her name being called out, herself emerged out of the house. She was at that time all alone in the house. There was thus none who could be said to have confined Guddi in the house.
6. It appears that Guddi (PW 4) was given to making blatant exaggerations. Describing the alleged resistance which she put up against the appellant Babulal, Guddi (PW 4) stated that in order to thwart Babulal from committing sexual intercourse with her, she had bitten his hand. Babulal, on his part, in order to overpower her had bitten her right hand. He had also clawed her breasts causing injury marks. She also stated that she had shown injuries on her breasts as also bite-injury on her right hand to the lady doctor who had medically examined her. She further stated that she had been forcibly thrown down on the ground by appellant Babulal as a result of which her back had got abraded. Guddi claimed that she had shown the alleged abrasions on her back to the lady doctor. All the above evidence of Guddi was belied by the evidence of Dr. (Smt.) Sheela Kushwaha (PW 9), who stated that she found no injuries of any kind on the body of Guddi upon medical examination. Guddi in another portion of her evidence stated that her bangles were broken and broken pieces of bangles lying in the room of appellant Babulal were also shown by her to the Police Officer, when she was recovered from that house. The Police Officer Tilak Singh Chouhan contradicted this part of the evidence of Guddi saying that Guddi showed him no kind of broken pieces of bangles lying in any room, when she was recovered from the house of appellant Babulal.
7. When there is even semblance of exaggeration or artificiality in the evidence of prosecutrix in a case of rape, it is proper to look for corroboration to the testimony of the prosecutrix before she is relied upon. The following observations in the decision of State Government v. Sheodayal in 1955 NLJ 563, AIR 1956 Nag. 8 are pertinent:
"The test as to whether corroboration is necessary lies in the naturalness of the story deposed to by the prosecutrix. If there be any doubt as regards its genuineness, there is the need of caution, and therefore, of corroboration. For this purpose it is not necessary that the entire story should appear doubtful. It is sufficient if any part of the narration has the semblance of exaggeration or artificiality."
8. One of the serious infirmities, which appeared in the evidence of Kamla (PW 1) was that, according to her evidence, appellant Mangilal before letting her go, took her to a field and in an improvised room in that field, had forcible carnal intercourse with her. Her further evidence was that appellant Mangilal had snatched her child from her lap and thrown it out of the room, before committing forcible intercourse with her inside the room. It was also her evidence that some people on hearing the cries of her child, had actually arrived outside the room. At that time, appellant Mangilal, who was forcibly committing sexual intercourse with her, left her and going out of the room, had fled away on the sight of people collected. She also came outside the room and saw 4 or 5 persons collected. In the F.I.R. (Ex. P- 3) lodged by her, she went to the length of stating that 4 or 5 persosns had actually seen the appellant Mangilal committing sinful act with her (portion D to D of Ex. P-3). Kamla was discredited with the evidence of Gangadhar (PW 6), Siyaram (PW 7) and Latoor (PW 8), said to be amongst those 4 or 5 persons. They denied that they had reached near the room in question, much less that they had seen anything happening inside the room. They also denied that Kamla came out of the room and told them anything. Their evidence was that Kamla with the child was seen by them on a road. Kamla wanted them to guide her to be taken to village chief. They had then taken her to Sarpanch Abdul Hafiz (PW. 5).
9. There is also reason to think that F.I.R. was delayed at least by 24 hours by Kamla (PW 1). She thus deposed that she was kept in wrongful confinement by appellant Mangilal for 3 days and 3 nights. She further asserted in her evidence in para 24 that she was not kept in the room for 4 days. This meant that Kamla was taken to the room, on her own story, in the morning of 20-7-1991. She remained in that room until the morning of 23-7-1991. On that day, appellant Mangilal let her go after the alleged incident in a field. The report Ex. P-3 was lodged by Kamla on 24-7-1991 at 22.30 hours. There was a delay of whole 24 hours and it may not be improbable if the report was made after some deliberations.
10. The medical evidence completely negatives the alleged story of stiff resistance said to have been put up by the two women Kamla (PW 1) and Guddi (PW 4). It was the evidence of Dr. Smt. Sheela Kushwaha (PW 9) that upon medical examination of these two women, she found that they had no marks of injuries on any part of their body. What is more, the circumstance brought out in the report of Chemical Examiner, Forensic Science Laboratory, Sagar (Ex. P-20), was that no seminal stains and spermatozoa were found on the petticoats of Kamla and Guddi.
11. It may be appropriate at this stage to notice the proper approach which the Court should adopt while evaluating prosecution evidence, particularly the evidence of the prosecutrix in sex-offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court bases a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix? The observations of the Supreme Court in the case of State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 are pertinent. It may be useful to reproduce some of the observations in verbatim :
"A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of. the crime. The Evidence Act "nowhere says that her-evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached must receive the same weight as is attached to an injured in cases of physical violence..................................If the court .... 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".
12. The following observations in Bhoginbhai Hirjibhai v. State of Gujarat in AIR 1983 SC 753 are also pertinent:
"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. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. 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 the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the "probabilities-factor" is found to be out of tune".
13. It is evident from the above dicta that corroboration of the evidence of an adult prosecutrix of sex offence may be insisted upon if her evidence is found to be infirm or not trustworthy or "probabilities-factor" renders it unworthy of credit. In the present case, the account given by the two women Kamla and Guddi, has been found to be suffering from infirmities, marked by exaggerations and not in accord with 'probabilities-factor'. Far from corroboration from other independent evidence, even the medical evidence led in the case, sought to discredit and belie the version put forward by the two women. In the circumstances, it would be proper to hold that the story of the prosecution about alleged abduction, rape and wrongful confinement bristles with doubts and has not been satisfactorily established.
14. The appeal is allowed. The convictions and sentences of the appellants for offences under Sections 366, 376 and 343, Indian Penal Code are set aside. The appellants are acquitted of these offences. They shall be set at liberty forthwith, if not required in any other case.