Madhya Pradesh High Court
Surendra@Monu vs The State Of Madhya Pradesh on 15 December, 2023
Author: Anil Verma
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 428 of 2013
BETWEEN:-
KRISHNAKANT S/O KEDARNATH BANERJEE,
AGED ABOUT 31 YEARS, OCCUPATION: GOVT.
SERVANT, R/O : MANPURA, BHIND (M.P.) /
NOW : GANGARAMVERMA KA MAKAN,
PUSHKAR SCHOOL KE PASS, UJJAIN (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI S. A. WARSI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLILCE STATION JIWAJIGANJ, UJJAIN
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUDARSHAN JOSHI - GOVT. ADVOCATE)
CRIMINAL APPEAL No. 517 of 2013
BETWEEN:-
OMPRAKASH @ BABLOO @ OM S/O
SHYAMLAL MAJHI, AGED ABOUT 31 YEARS,
OCCUPATION: LABOUR, R/O IN FRONT OF
JAIN MANDIR, DHANNALAL KI CHAAL,
BEHIND NEELGANGA SCHOOL, UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI AMIT SINGH SISODIYA - ADVOCATE)
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 12/15/2023
5:55:27 PM
2
AND
THE STATE OF MADHYA PRADESH THROUGH
POLILCE STATION JIWAJIGANJ, UJJAIN
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUDARSHAN JOSHI - GOVT. ADVOCATE)
CRIMINAL APPEAL No. 666 of 2013
BETWEEN:-
SURENDRA @ MONU S/O SUBHASH TAHAKUR,
AGED ABOUT 25 YEARS, R/O BEHIND QURESHI
MATAN SHOP, NANKHEDA, EKTA NAGAR,
POLICE STATION NEELGANGA, UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(APPELLANT THROUGH THE COUNSEL)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLILCE STATION JIWAJIGANJ, UJJAIN
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUDARSHAN JOSHI - GOVT. ADVOCATE)
Reserved on : 04/10/2023
Pronounced on : 15/12/2023
These appeals having been heard and reserved for orders, coming
on for pronouncement this day, the Justice Anil Verma pronounced the
following:
JUDGMENT
This judgment shall govern the disposal of all the three appeals i.e. Criminal Appeal No.428/2013 (Krishnakant Vs. State of M.P.), Criminal Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 3 Appeal No.517/2013 (Omprakash @ Babloo @ Om Vs. State of M.P.) and Criminal Appeal No.666/2013 (Surendra @ Monu Vs. State of M.P.). The appellants have preferred present criminal appeals under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the common impugned judgment of conviction dated 21/03/2013 passed by 7th Additional Sessions Judge, Ujjain (M.P.) in Sessions Trial No.379/2011, whereby appellants have been convicted and sentenced as under:
Appellants - Krishnakant and Surendra @ Monu Conviction Sentence Fine Imprisonment in Section / Act Imprisonment If deposited, lieu of Fine details Life 376(2)(g) of IPC Rs.10,000/- 02 Years SI Imprisonment 342 of IPC 01 Year RI Rs.500/- 03 Months SI 506 (Part II) 01 Year RI Rs.500/- 03 Months SI of IPC Appellant - Omprakash @ Babloo @ Om Conviction Sentence Fine Imprisonment in Section / Act Imprisonment If deposited, lieu of Fine details 376(2)(g) r/w 34 10 Years RI Rs.10,000/- 01 Year SI of IPC 342 of IPC 01 Year RI Rs.500/- 03 Months SI 506 (Part II) 01 Year RI Rs.500/- 03 Months SI of IPC
02. The brief facts giving rise to these appeals are that Mohan Singh (PW-2) and prosecutrix (PW-1) got married against the will of their Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 4 families on 27/05/2011 at a temple situated in Bandra (Maharashtra).
Thereafter, started living in a house of their relative. On 06/06/2011 prosecutrix along with her husband and relatives were going to Godhra from Mumbai in a train. Prosecutrix and Mohan Singh were travelling in the same coach and their relative Dilip was travelling in a different coach. Prosecutrix and Mohan Singh could not get down from train at Godhra as they could not wake-up in time. When they wake-up, they came to know that they have reached Ujjain Railway Station. Then, they got down from the train and were sleeping at platform No.6. At that time one man (appellant Krishnakant) came there and inquired them about the tickets, on which they have informed him that due to sleeping they could not get off the train and now they are waiting for some other train for Godhra. Thereafter, the the appellant Krishnakant called two other persons and told the prosecutrix and Mohan Singh that they will leave them at Bus Stand from where they can catch a bus to Godhra. Thereafter, accused persons called an auto rickshaw and took the prosecutrix and Mohan Singh towards jungle and the persons coming with the prosecutrix (who is appellant Surendra @ Monu and his fellow co-accused Omprakash) committed gang rape upon her and have also snatched her golden chain, mobile phone and other articles. Thereafter, anyhow prosecutrix and Mohan Singh ran away from the clutches of those peoples and went to the adjoining house, where people gathered and took them to Police Station Jiwajiganj, Ujjain. Prosecutrix only knows the Gujarati language, not aware with the Hindi language, therefore, with the help of interpreter, FIR has been lodged.
03. The prosecution story is further that during the investigation, it has Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 5 also been gathered that appellant Surendra and Krishnakant forcefully took the prosecutrix and her husband Mohan Singh in a Hotel and inside the Hotel Surendra again prosecutrix was raped by the accused person. Dr. Anita Joshi (PW-3) conducted the MLC of the prosecutrix and prepared her vaginal slide and also seized her undergarment, kurti and slacks. On 08/06/2011, appellant Krishnakant and Surendra have been arrested by arrest memo (Ex.-P/27 and P/28) and Dr. G. S. Dhawan (PW-
6) conducted their MLC. Their blood samples were also collected by Dr. Purohit (PW-20) and Dr. G. S. Dhawan for the purpose of DNA test. The seized vaginal slide, cloths of prosecutrix and accused persons and blood samples were sent to FSL, Sagar for DNA analysis and DNA report was found positive in respect of appellant Krishnakant and Surendra.
04. The prosecution story is further that Investigating Officer Inspector Sanjay Verma (PW-18) recorded the discovery statement of co-accused Atul and the appellant Omprakash and looted mobile was recovered from the possession of appellant Omprakash. The police has also recorded discovery statement of co-accused Sunil and recovered a register from Hotel Gujarati palace. During the investigation, police has also seized motorcycle, which was used by the accused persons during the incident. Duty certificate and some other relevant papers have also been seized by the police regarding the duty of accused Krishnakant, who happens to be posted as a Constable at Police Station GRP, Ujjain at the time of incidence. Naib Tehsildar Purnima Singhi (PW-15) conducted the Test Identification Parade and prosecutrix and her husband identified the accused persons.
05. After completion of investigation, charge sheet has been filed Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 6 before the Judicial Magistrate First Class, Ujjain, who has committed the case to the Court of Sessions, which was later on transferred to the 7 th Additional Sessions Judge, Ujjain for trial. Thereafter, the trial Court has framed the charges under Section 342, 376(2)(g), 392 and 506(2) of IPC. All the appellants have abjured their guilt and pleaded that that they are completely innocent and have been falsely implicated in this matter. In order to bring home the charges, the prosecution has examined as many as 20 witnesses, while the defence has examined only one witness. After completion of trial, the trial Court on due appreciation and scrutinizing the evidence available on record arrived at a conclusion that the prosecution has duly proved the case. Consequently, all the appellants have been convicted and sentenced as mentioned herein above. The trial Court has acquitted the other co-accused persons Atul @ Kalu and Sunil. Hence, the appellants have preferred these appeals.
06. Learned counsel for the appellant Krishnakant (in Criminal Appeal No.428/201) contended that the impugned judgment of the trial Court is contrary to the law and facts on record. The MLC of the prosecutrix does not support the case of prosecution. Complainant has lodged a false report. DNA report is also failed as it was dispatched delayed and link evidence of keeping safe custody is also missed. Prosecutrix did not support the case of prosecution regarding the appellant Krishnakant, but despite this the trial Court has convicted the appellant without there being any evidence. The statements of witnesses are self contradictory and independent witnesses did not support the case of the prosecution. The investigation is tented and partial. FIR is also delayed. Prosecutrix was major and married lady. Hence, he prays that appellant be acquitted Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 7 from all the charges and the impugned judgment passed by the trial Court be set aside.
07. Learned counsel for the appellant Omprakash @ Babloo @ Om (in Criminal Appeal No.517/2013) filed a separate appeal on all the same grounds, which are being taken by the appellant Krishnakant in Criminal Appeal No.428/2013 with submission that prosecution has failed to prove its case against the appellant Omprakash, therefore, he deserves to be acquitted.
08. Learned counsel for the appellant Surendra @ Monu (in Criminal Appeal No.666/2013) contended that the judgment passed by the trial Court is against the law and facts. Most of the witnesses have been turned hostile, but trial Court has not considered their statement in its right perspective. Before the Test Identification Parade, the face of the appellant was not kept in covered manner. Process of blood sampling for DNA analysis was defective. The trial Court has ignored the medical evidence, which does not support the case of prosecution. There are material contradictions and omissions in the statement of prosecution witnesses and the case of the prosecution is based upon only assumption and conjectures and surmises, therefore, impugned judgment deserve to be set aside.
09. Per contra, learned counsel for the respondent / State opposes the prayer by supporting the impugned judgment passed by the trial Court and prays for dismissal of all these appeals by contending that there is ample evidence available on record against the appellants, which is sufficient to affirm the findings recorded by the trial Court. The trial Court after appreciating the entire evidence available on record has Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 8 rightly convicted all the appellants. The trial Court has not committed any error in holding that the appellants are guilty of the aforesaid offence. Hence, no interference in the impugned judgment is warranted, and all the appeals deserve to be dismissed.
10. We have duly examined the entire record with due care and have considered the rival contentions of both the parties. Findings regarding the appellant Krishnakant:-
11. The first question is that whether, the appellant Krishnakant is guilty of offence of rape or not?
12. It is significant that in the instant case prosecutrix (PW-1) and her husband Mohan (PW-2) are the eyewitnesses. Therefore, their statements are material to adjudicate this case. Referring to the statement of the prosecutrix (PW-1), it is clear that prosecutrix (PW-1) deposed that appellants Monu, Kalu, Omprakash and one policeman forcefully took them in forest by using an auto rickshaw and forcefully alighted them from the auto rickshaw and first of all a policeman committed rape upon her. Thereafter accused Monu committed rape upon her. Then they took her along with her husband into a room of a hotel. Then accused Monu torn her clothes and pressed her breasts and committed rape upon her. At that time one fatty person who is the accused Omprakash caught hold her husband.
13. Prosecutrix (PW-1) categorically stated in para 1 of her deposition that she could not identify the police person who caught her husband and threatened them by asking their train tickets. Even she could not identify the appellant Krishnakant before the trial Court. She has turned hostile, but she categorically denied that appellant Krishnakant committed rape Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 9 upon her in the forest. Prosecutrix (PW-1) in para 17 stated that after well identifying the accused persons, she is sure that the police person who has committed rape upon her, is not the present accused Krishnakant. Prosecutrix also deposed that she did not identify the appellant Krishnakant during the test identification parade in the jail.
14. Alleged eyewitness Mohan Singh (PW-2) also categorically stated in his statement that appellant Krishnakant was not the same policeman, who took them outside the railway station and forced them to sit in the auto rickshaw. In para 17 of his cross-examination he deposed that he did not identify the appellant Krishnakant during the Test Identification Parade (Ex.P/6). Mohan Singh (PW-2) after seeing all the accused persons in the trial Court during his testimony, specifically stated that present appellant Krishnakant was not the policeman who has committed rape upon the prosecutrix.
15. Therefore, on the basis of the statement of prosecutrix and eyewitness Mohan Singh (PW-2), prosecution has failed to prove that the appellant Krishnakant had committed rape upon the prosecutrix. Even the prosecutrix and her husband could not identify the appellant Krishnakant during the Test Identification Parade (Ex.-P/6) and during the dock identification before the trial Court. Prosecution did not produce any other witness to establish its case against the appellant Krishnakant.
16. Learned counsel for the State submits that although prosecutrix and her husband have turned hostile, but appellant Krishnakant has been convicted on the basis of the corroborative evidence i.e. DNA report (Ex.-P/48) which was found positive against the appellant Krishnakant, Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 10 but from perusal of the statement of Dr. B.B. Purohit (PW-20), Dr. G.S. Dhaval (PW-6), Dr. Anita Joshi (PW-7) and DSP Sanjay Verma (PW-18) it appears that the link evidence of keeping the blood sample for DNA analysis in safe custody is not proved by the prosecution. MLC was conducted at 5.35 pm, before that the slide and underwear was seized, which creates doubt upon the blood sampling for DNA analysis. FSL report also reveals that the underwear was added later on. Therefore, the sampling process for DNA analysis is also suspicious. Apart from the above, the prosecutrix herself denied that appellant Krishnakant has committed rape upon her. Therefore, the DNA report (Ex.P/48) cannot be made sole basis for conviction of the appellant Krishnakant.
17. In view of the evidence of prosecutrix (PW-1), her husband Mohan (PW-2) coupled with the DNA report, it is evident that appellant Krishnakant was not identified by the prosecutrix during the test identification parade conducted during the investigation and dock identification before the trial Court. Therefore, we are of the considered opinion that prosecution has failed to prove that appellant Krishnakant has committed rape upon the prosecutrix. Therefore, the findings given by the trial Court in respect of the appellant Krishnakant cannot be sustained. In these circumstances, the trial Court has committed error in convicting the appellant Krishnakant for the offence under Section 342, 506 (Part II) and 376(2)(g) of IPC, therefore, Krishnakant deserves to be acquitted from all these charges.
Findings regarding the appellant Omprakash:-
18. So far as the evidence against the appellant Omprakash is concerned, from perusal of the judgment of the trial Court, it appears Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 11 that the main accused is Surendra @ Monu, who has raped the prosecutrix twice. The trial Court has framed charges under Section 342, 376(2)(g), 392, 506(II) and 201 of IPC against the appellant Omprakash, but on the basis of the evidence available on record, the trial Court has acquitted the appellant Omprakash from the charges under Section 392 and 201 of IPC and he has been convicted for the offence under Section 376(2)(g), 342 and 506(II) of IPC.
19. The prosecutrix (PW-1) stated in her examination-in-chief that a policeman (co-accused Krishnakant) and a tall man (accused Monu) has committed rape upon her in the forest. Then accused Monu took her in a Hotel and committed rape upon her. At that time, one fatty person (appellant Omprakash) caught hold her husband. However, nothing has been mentioned in the FIR (Ex.-P/1) that in the Hotel appellant Omprakash caught hold the husband of the prosecutrix at the time of incident. Prosecutrix herself in FIR (Ex.-P/1) stated that in the forest an auto driver and one other person caught hold her husband, but she did not state anything regarding the said incident in her Court statement, therefore, there is material contradictions and omissions in the Court statement of the prosecutrix and the version of FIR (Ex.-P/1). On the basis of above, her statement appears to be doubtful.
20. Mohan Singh (PW-2) deposed that the accused Surendra @ Monu and policeman (accused Krishnakant) threatened and forcefully took them towards the forest in an Auto Rickshaw where Krishnakant and Surendra @ Monu committed rape upon her wife / prosecutrix. He did not disclosed anything that at the time the incident took place, the appellant Omprakash was present there. Although he deposed in para 7 Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 12 of his deposition that in the Hotel, appellant Omprakash talked with co-
accused Surendra and Omprakash caught hold him and Surendra @ Monu committed rape upon his wife. Omprakash also snatched his mobile phone, but in his statement under Section 164 of Cr.P.C. (Ex.- D/4), he did not disclose the name of the appellant. In his police statement (Ex.-D/3), he also changed his version and not supported the case of prosecution. On the same set of evidence, the trial Court has acquitted the appellant Omprakash from the charges under Section 392 of IPC. Mohan in para 27 of his statement also deposed that appellant Omprakash has returned his mobile SIM and he had given the same SIM to the police personals, but during the investigation no SIM was recovered from the possession of the appellant Omprakash or Mohan Singh (PW-2), therefore, the statement of Mohan Singh appears to be doubtful.
21. So far as the genuineness of the Test Identification Parade is concerned, although Mohan Singh stated that on 25/06/2011 inside the jail he has identified the fatty person as Omprakash and Test Identification Parade memo is Ex.-P/6, which was signed by him, but Mohan Singh categorically admits in para 28 of his cross-examination that after the incident he remained in Ujjain for further 8-10 days and police caught hold all the persons and shown them and thereafter, he identified them inside the jail. On the basis of the statement of Mohan Singh it is proved that police has shown him the appellant Omprakash prior to the Test Identification Parade (Ex.-P/6), therefore, proceeding of TIP (Ex.-P/6) became very doubtful and cannot be relied upon. Prosecutrix (PW-1) and her husband (PW-2) did not state anything Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 13 against the appellant Omprakash that at the time of incident appellant Omprakash given any threat of life to them. Prosecutrix (PW-1) did not state anything that appellant has wrongfully confined the prosecutrix.
22. On the basis of the aforesaid analysis, it is quite clear that the appellant Omprakash actually not committed rape upon the prosecutrix. Limited allegation has been levelled against him that at the time of incident he caught hold the husband of the prosecutrix, but his statement is not supported by the other witnesses. There is material contradictions and omissions in the Court statement, police statement (Ex.-D/3) and statement under Section 164 Cr.P.C. (Ex.-D/4). TIP (Ex.-P/6) is also doubtful, therefore, the findings given by the trial Court in respect of the overt act attributed to the appellant Omprakash, cannot be relied upon.
23. In the aforesaid circumstances, this Court is of the considered opinion that the trial Court has committed error in convicting the appellant Omprakash for the offence under Section 376(2)(g), 506(II) and 342 of IPC, therefore, the appellant Omprakash deserves to be acquitted from all these charges.
Findings regarding the appellant Surendra @ Monu:-
24. Now the next question is whether, the appellant Surendra @ Monu is guilty of offence of wrongful confinement, rape and criminal intimidation or not?
25. The prosecutrix (PW-1) in her statement categorically stated against the appellant Surendra @ Monu in corroboration with the FIR (Ex.-P/1) that on the date of incident Monu, Kalu, Omprakash and one policeman forcefully took them in forest by using an auto rickshaw and forcefully alighted them from the auto rickshaw and first of all a Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 14 policeman committed rape upon her, then the tall accused (Monu) forcefully removed her cloths and committed rape upon her. Then accused took her in a Hotel, threatened her for life, kept in a room, where appellant Monu torn her cloths and committed rape upon her. Thereafter, accused Monu forced her to sit on a motorcycle along with her husband and when rough road came, she along with her husband jumped from the motorcycle and fled always from there and entered into the house situated nearby, thereafter, some person took them to the police station where she lodged an FIR (Ex.-P/1).
26. Mohan Singh (PW-2) as an eye-witness in para 3 to 8 has corroborated the statement of the prosecutrix by stating that accused Monu has committed rape upon her wife twice. First time in the forest and second time inside the Hotel room, but Suresh Singh (PW-3) only deposed that at the time of incident he saw Mohanlal and Bhupendra Soni along with a boy and girl. Mohanlal told him that rape has been committed with the girl, then he took both of them to the police station. Sanjay Acharya (PW-4) also confirmed that prosecutrix does not know Hindi language, she knows only Gujarati language, therefore, prosecutrix deposed in Gujarati language and he has translated her statement in Hindi. Her statements are Ex.-D/2 and D/4.
27. Learned counsel for the appellant submits that prosecutrix did not mention anything in the FIR (Ex.-P/1) regarding alleged incident of rape committed upon her inside the hotel. It is material contradiction and omission, therefore, the whole statement of prosecutrix became doubtful and cannot be relied upon. Prosecutrix (PW-1) admits that although the said incident which occurred inside the hotel was not mentioned in the Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 15 FIR (Ex.-P/1), but the fact remains that in the case in hand a young girl aged about 20 years was subjected to sexual harassment by the appellant Monu in the presence of her husband in an open place situated in forest and second time repeated the same act inside a closed room.
28. Prosecutrix is native from Gujarat and in Ujjain she was completely stranger. She does not know Hindi language and converse only in Gujarati language, therefore, one can well imagine her trauma after being subjected by such sexual harassment, therefore, due to the fear and other adverse circumstances, it is possible that she could not deposed completely regarding the incident at the time of alleged FIR, but later on in her statement under Section 161 of Cr.P.C. (Ex.-D/1 and D/2) and statement under Section 164 of Cr.P.C. she has narrated the whole incident in detail, therefore, no adverse inference can be drawn against her and such contradictions and omissions cannot be considered as material taking note of the fact that prosecutrix had no motive for false implication of the appellant Surendra @ Monu in the instant case.
29. Prosecutrix (PW-1) gave a detail account of what had happened to her on the fateful day. Her statement is well supported by the statement of Mohan Singh (PW-2) and FIR (Ex.-P/1). During the course of argument much emphasis has been made about the consent of the prosecutrix because she did not cry during the commission of rape. It is also alleged that the prosecutrix is a young women and she can resist the act of the appellant while the rape was committing upon her. However, aforesaid argument is not acceptable because the prosecutrix clearly deposed that other co-accused person caught hold her husband and appellant Monu was continuously threatening her for life that if she will Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 16 raise any alarm, he will kill them. She further deposed that appellant Monu showed his power by shutting her mouth with his hand, therefore, she could not cry during her abduction and commission of rape. It is also pertinent to note that in the cross-examination of the prosecutrix no suggestion has been put up by the defence that she was a consenting party.
30. Learned counsel for the appellant submitted that in this case first of all incident took place at 04:00 am in the early morning and matter has been reported by the prosecutrix at about 10:05 am. No plausible explanation has been offered by the prosecutrix regarding such delay in lodging the FIR, therefore, the possibility of false implication cannot be ruled out, but we are not impressed with the aforesaid submission for the reason that the place of incident is about 3.5 kilometer far from the police station Jiwajiganj. The incident had occurred in the night and prosecutrix offered an explanation that due to non-availability of conveyance and she remain in the custody of the accused persons, she could not lodge the FIR promptly. In these circumstances, it cannot be said that prosecutrix has failed to explain the delay in lodging the FIR.
31. Learned counsel for the appellant further submits that independent witnesses though available have not been examined by the prosecution, therefore, the trial Court has committed an error in not drawing adverse inference against the prosecution, but this submission has no force for the reason that offence of sexual assault are generally attempted in utmost secrecy and it is seldom that witnesses are found to be present at the time of occurrence of incident. In the testimony of the prosecutrix (PW-1), it is not mentioned that anybody was present at the time of Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 17 alleged incident. The prosecutrix deposed that after committing the rape, she along with her husband ran away from the spot and raised an alarm. After hearing her cry, some persons of that locality came there and she narrated the incident to them.
32. Learned counsel for the appellant Monu further submits that the place of occurrence is situated in thickly populated locality and it is not possible that such offence can be committed by the appellants at that place. The incident had taken place in the forest, which was not a public place and the second time incident took place inside a room of the hotel. Due to the fear and threat given by the accused persons, prosecutrix could not raise any alarm at the time of incident. At the time of commission of rape, the chances of the resistance or raised an alarm depends upon various factors. In the present case, it is stated by the prosecutrix that the appellant Monu was continuously threatening her and he put his hand on her mouth and she was overpowered by the appellant, therefore, in such circumstances, no resistance is offered, it does not amount that the act was not possible in thickly populated area. It is also worth to note here that the testimony of the prosecutrix is corroborated by her husband Mohan Singh (PW-2), Suresh Singh (PW-
3) and Khojema (PW-9) and prosecutrix narrated the incident to them.
33. The another submission made by learned counsel for the appellant Monu is that no internal or external injuries are found on the person of the prosecutrix, therefore, in absence of medical corroboration, her statement cannot be relied upon. It is true that Dr. Anita Joshi (PW-7), who has conducted MLC of the prosecutrix deposed that after examination of the prosecutrix, she did not found any internal or external Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 18 injury or any sign of bleeding. She was habitual for intercourse, therefore, no definite opinion can be given regarding any recent sexual intercourse. MLC report is Ex.-P/15. In this regard, this Court can relying upon the judgment delivered by the apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat reported in AIR 1993 SC 753, in which it has been held that:
"Corroboration is not the sine-quo-non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Viewing the evidence of the girl or the women who complains of rape or sexual molestation with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion, is to justify the charge of male chauvinism in a male dominated society.
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."
34. Apart from the above, prosecutrix (PW-1) categorically stated in para 8 of her statement that she has identified the accused person inside the jail during the Test Identification Parade and identification memo is Ex.-P/5. Her statement is well supported by the statements of Mohan Singh (PW-2) and Tehsildar Purnima Singhi (PW-15), therefore, identification parade of appellant Monu is also found cogent evidence regarding the aforesaid offence.
Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 1935. Hon'ble the apex Court in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and Another reported in (2006) 10 SCC 92, while considering whether the accused could be convicted on the sole testimony of the prosecutrix, has held as under:
"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. It the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
In the case of State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary & Others reported in 2019 (4) Crimes 271 (SC), the Hon'ble Supreme Court has held and observed as under:-
"24. 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 alias Undrya v. State of Maharashtra (2006) 15 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 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, ther is Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 20 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 v. N.K. The accused (2000) 5 SCC 30]."
In light of the principle laid down by the Hon'ble Supreme Court, the testimony of the prosecutrix coupled with the evidence of eye- witness Mohan Singh (PW-2) and FIR (Ex.-P/1) is sufficient to convict the appellant Surendra @ Monu for wrongful confinement of the prosecutrix, criminal intimidation and rape with the prosecutrix.
36. In that view of the matter, in our considered opinion, the trial Court has rightly convicted the appellant Surendra @ Monu for the offence punishable under Sections 376(2)(g), 342 and 506(II) of IPC.
37. In view of the foregoing discussion, this appeals filed by the appellant Krishnakant (Criminal Appeal No.428/2013) and Omprakash @ Babloo (Criminal Appeal No.517/2023) are allowed and the conviction and jail sentence of the appellant Krishnakant under Section 376(2)(g), 342 and 506(II) of IPC and conviction and jail sentence of appellant Omprakash @ Babloo under Section 376(2)(g) r/w Section 34, 342 and 506(II) of IPC are hereby set aside. They are acquitted from all the charges. Their bail bond and sureties stand discharged. They be released forthwith, if not required in any other offence.
38. For the reasons stated herein above, we find no force in the appeal filed by appellant Surendra @ Monu i.e. Criminal Appeal No.666/2013 and the same being devoid of merit substance is hereby dismissed. The judgment of conviction and jail sentence awarded by the trial Court to the appellant Surendra @ Monu is hereby upheld. He is in jail and shall Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 12/15/2023 5:55:27 PM 21 remain in jail to undergo the remaining part of jail sentence awarded to him.
39. Disposal of the property shall be as per the orders of the trial Court.
40. Let a copy of this judgment be sent along with the record to the concerned trial Court for information and necessary action.
41. Signed judgment be kept in file of Criminal Appeal No.428/2013 and a copy thereof be placed in the files of connected Criminal Appeal Nos.517/2013 and 666/2013.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
Tej
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 12/15/2023
5:55:27 PM