Madhya Pradesh High Court
Petu @ Gopal vs State Of M.P on 14 August, 2019
Equivalent citations: AIRONLINE 2019 MP 864
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
CRA No. 296/2013
Appellant -------------------- Petu alias Gopal
Vs.
Respondent ------------------The State of MP
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None for the appellant. Shri D. S. Rajawat, who is in the list of Legal Aid
Services Authority, is appointed as amicus curiae for the appellant.
Shri Aditya Singh, Counsel for the respondent/ State.
JUDGMENT
(Delivered on 14/08/2019) Per G. S. Ahluwalia, J:-
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 24/12/2012, passed by 8 th Additional Sessions Judge, Gwalior in Sessions Trial No.07/1996, by which the appellant has been convicted under Section 376 (2)(g) of IPC and has been sentenced to undergo the rigorous imprisonment of ten years and a fine of Rs.1,000/- in default to further undergo rigorous imprisonment of two months.
(2) As per the certificate issued by the Trial Court under Section 428 of CrPC, during the trial, the appellant had already undergone the actual jail sentence of three years, four months and 22 days approximately. Further, the appellant is in jail from 24/12/2012 i.e. from the date of judgment and from the order sheets of this case, it appears that the appellant had never filed an application for suspension of sentence and grant of bail. Thus, it appears that the appellant must have undergone the entire jail sentence of rigorous imprisonment of ten years.2
(3) The necessary facts for the disposal of the present appeal in short are that on 06/11/1994 at about 1:00 PM the prosecutrix lodged a report that she is the resident of Gendewali Sadak. Her father-in-law and mother-
in-law live in Village Koleth. She had gone to Village Koleth one day before Diwali to celebrate the festival. At about 11:00 PM she went to answer the call of nature where the co-accused Ramdeen and the appellant committed rape on her after gagging her mouth. They had also extended a threat that in case if any complaint is made, she would be again ravished. Earlier also, the prosecutrix had made a complaint at police station Tighra against the co-accused Ramdeen for molesting her. The prosecutrix came back and informed the incident to her mother-in-law and on the next day, without taking bath she came back and informed the incident to her husband and accordingly, the matter was reported to the police on 06/11/1994. Since the incident had taken place within the jurisdiction of Police Station Tighra, therefore, the matter was transferred to the said police station and Crime No.51/1994 for offence under Section 376/34 of IPC was registered. The prosecutrix was sent for medical examination. The site memo was prepared. Accused persons were arrested vide arrest memo Ex.P5 and Ex.P6. Clothes, vaginal slides and vaginal swabs of the prosecutrix were prepared and sealed by doctor which were duly seized by the police and were sent to FSL and the FSL report is Ex.P9. The statements of the witnesses were recorded and the charge sheet was filed against the present appellant and the co-accused Ramdeen for offence under Section 376/34 of IPC.
(4) The Trial Court by order dated 24/10/1996 framed the charge under Section 376(1) of IPC against the appellant as well as the co-accused 3 Ramdeen. By order dated 1/7/1999, the Trial Court amended the charge and charge under Section 376(2)(g) of IPC was framed. (5) The prosecution, in order to prove its case, examined prosecutrix (PW1), Mullo Bai (PW2), Tularam (PW3), Alka Shukla (PW4), Udal Singh (PW5), Brij Kishore Parashar (PW6), Dr. A.K.Bohare (PW7) and Anand Bhargav (PW8). The accused persons did not examine any witness in their defence.
(6) The Trial Court by judgment dated 25/07/2001 acquitted the appellant as well as the co-accused Ramdeen of all the charges. (7) It appears that the prosecutrix filed a Criminal Revision before this Court against the judgment of acquittal dated 25/07/2001, which was registered as Criminal Revision No.413/2001 and this Court by order dated 11/10/2011 allowed the Criminal Revision and remanded the matter back to the Trial Court. However, since the co-accused Ramdeen had expired during pendency of the criminal revision, therefore, the criminal revision filed by the complainant against the acquittal of Ramdeen was dismissed as abated.
(8) It appears that on 07/12/2011, the appellant surrendered before the Trial Court and on the same day he was granted bail. Thereafter, notices to the witnesses were issued. Dr. A.K.Bohare (PW7) and Anand Bhargav (PW8) were further examined and cross-examined on 06/01/2012. On 07/02/2012, the prosecutrix appeared but on the request of the counsel for the appellant, her further examination was deferred. On 09/02/2012 also, the prosecutrix was present but as the appellant was absent, therefore, the case was adjourned on the request of the counsel for the appellant. On 4 10/02/2012, the prosecutrix was present but since the appellant was not present, therefore, his bail bonds were cancelled and warrant of arrest was issued. On 23/04/2012, the appellant was arrested and produced in execution of warrant of arrest. On 19/07/2012, the prosecutrix and Tularam (PW3) were further cross-examined. On 26/10/2012, the prosecution witness Brij Kishore Parashar was present but in the light of the order dated 11/10/2011, passed in Criminal Revision No.413/2001, the counsel for the appellant expressed that he does not want to further cross- examine this witness. The prosecution could not serve Dr. Hemlata Batham. Accordingly, the prosecution case was declared closed on 09/12/2012 and the case was fixed for recording the statement of the appellant under Section 313 of CrPC. On 21/12/2012 his statement under Section 313 of CrPC was recorded and the case was fixed for final arguments and accordingly, by the impugned judgment and sentence dated 24th December, 2012, the appellant has been convicted under Section 376(2)(g) of IPC.
(9) Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that the prosecution has failed to prove that the prosecutrix was subjected to rape by the appellant. Her sole testimony should not be relied upon in absence of any corroboration. Further, it is fairly conceded that since the appellant had undergone the actual detention of three years, four months and 22 days during the trial and since the appellant is in jail from the date of judgment i.e. 24/12/2012, therefore, it appears that after including the remission period, the appellant must have been released after having undergone the jail sentence and even in absence of remission period, the appellant has 5 undergone the actual jail sentence of ten years also. (10) Per contra, the Counsel for the State submits that where evidence of the prosecutrix is found to be reliable and credible, then asking for further cross-examination is nothing, but adding insult to her. It is further submitted that the prosecutrix cannot be treated as an accomplice. Further, the Trial Court has rightly convicted the appellant after appreciating the evidence in detail.
(11) Heard the learned Counsel for the parties.
(12) In the present case, the incident is said to have taken place on 05/11/1994 at about 11:00 in the night and the FIR was lodged on 06/11/1994 at about 1:00 in the afternoon i.e. 14 hours of the incident and the police station Mahila Thana Gwalior is situated at a distance of 18 kilometers. In the FIR, it is specifically stated by the prosecutrix that she is residing in Gendewali Sadak along with her husband and her parents-in- law live in village Kuleth and one day prior to Diwali, she had gone to Village Kuleth for celebrating the festival. At about 11:00 in the night she went outside the house to answer the call of nature. The appellant and the co-accused Ramdeen caught hold of her and gagged her mouth and she was thrown on the ground. The appellant caught hold of her hands and the co-accused Ramdeen took off her clothes and committed rape on her. Thereafter, her mouth was gagged by the co-accused Ramdeen and the appellant committed rape on her. Earlier also, the co-accused Ramdeen had molested her and a report was lodged in Police Station Tighra. While leaving the place of incident, the co-accused Ramdeen had warned that in case, if the report is lodged, then again she would be raped as she must 6 have got the result of lodging the report of molestation. The prosecutrix came back to her house and informed the entire incident to her mother-in- law. On the next morning without taking bath, she came back to her house and informed the entire incident to her husband and accordingly, the FIR was lodged. In the Court evidence also, the prosecutrix narrated the entire incident in the manner in which it was disclosed in the FIR Ex.P1. She has further stated that she was sent for medical examination. When she was medically examined and her clothes were seized, the spot map was prepared. Her broken and unbroken bangles were seized. In cross- examination, she has stated that after the marriage, she was residing in village Kuleth with her parents-in-law, and now she has shifted to Shinde Ki Chhavani, Gwalior along with her husband and sometimes she go to village Kuleth for celebrating the festival. Ramdeen resides in the colony itself and his house is situated after two houses and the house of the appellant is situated at a distance of 100-150 steps. Further, none of the appellants are on visiting terms. She had gone to village about two days prior to the incident. She had gone to forest area at about 11:00 in the night. The place of incident is situated at a distance of 100-200 steps from the house. The place of incident is an isolated place having no colony or house. She took about five minutes for coming back to her house from the place of incident. She further denied that her husband was ever detained in the police station. She further denied that the co-accused Ramdeen had spent Rs.3,000/- for getting her husband released. She further denied that the co-accused Ramdeen used to demand his money back, therefore, he has been falsely implicated. She was further cross-examined on 27.07.1999. She further admitted that the incident falls within the 7 territorial jurisdiction of Police Station Tighra but as she was told that the report of rapes are lodged in Mahila Thana, therefore, she lodged the report in Mahila Thana. She had not suffered injuries because of broken bangles. She did not suffer any external injury, however, swelling had developed in her private parts. She further stated that she had gone to the police station without changing her clothes and her clothes were seized in the hospital. In the light of the remand order, the prosecutrix was further examined by the prosecution. In further examination, on 19.07.2012 she admitted that she had given her petticoat for medical examination and in cross-examination, she has stated that she had put her thumb impression of right hand on the consent letter.
(13) Mullo Bai (PW2) has stated that the prosecutrix had come to Village Kuleth and had gone to answer the call of nature in the night. After sometime, she came back and informed that the appellant and the co- accused Ramdeen have committed rape on her. In cross-examination, she stated that the prosecutrix had come to her village about four days prior to the incident and she came back after two hours and had informed the incident.
(14) Tularam (PW3) is the husband of the prosecutrix. He has stated that the prosecutrix had gone to village. On the next day the prosecutrix informed that both the accused persons have ravished her. Thereafter, he lodged the FIR in the police station Mahila Thana and in cross- examination, this witness has stated that he was never arrested in any criminal case. In further examination in the light of the remand order passed by this Court, this witness has stated that about 7-8 months prior to the incident, the co-accused Ramdeen had molested his wife and its report 8 was lodged.
(15) Alka Shukla (PW4) is the SHO of Police Station Mahila Thana, Gwalior. She has stated that the FIR Ex.P1 which was lodged on the instructions of the prosecutrix is in her handwriting and written by her and the statement of the prosecutrix was also recorded. The prosecutrix was sent for medical examination and since the incident had taken place within the territorial jurisdiction of Police Station Tighra, therefore, diary along the FIR Ex.P1 was sent to Tighra Police Station.
(16) Udal Sngh (PW5) had seized the clothes as well as slides sealed by the Hospital vide seizure memo Ex.P2.
(17) Brij Kishore Parashar (PW6) had investigated the matter. (18) Dr. A.K.Bohare (PW7) had medically examined the appellant and he was found competent. His MLC report is Ex.P10.
(19) It appears that Dr. Hemlata Batham who had medically examined the prosecutrix, was never examined, for the reason that her whereabouts could not be traced and the medical report of the prosecutrix was got proved from the prosecutrix (PW1) and was marked as Ex.P11 and according to MLC report of the prosecutrix, no injury mark was found all over the body and two vaginal slides and swabs were prepared. As the prosecutrix was habitual to intercourse, therefore, no definite opinion could be given. The FSL report is Ex.P9 according to which human sperms and semen were found on the petticoat, as well on both the vaginal slides and vaginal swabs of the prosecutrix, however, semen found on the petticoat as well as vaginal swab was found insufficient for semen examination.
9(20) It is well-established principle of law that if the evidence of the prosecutrix is found to be reliable and credible, then no further corroboration is required.
The Supreme Court in the case of Aslam Vs. State of U.P. Reported in (2014) 13 SCC 350 has held as under :-
''9. This Court has held that if, upon consideration of the prosecution case in its entirety, the testimony of the prosecutrix inspires confidence in the mind of the court, the necessity of corroboration of her evidence may be excluded. This Court in Rajinder v. State of H.P. has observed as under: (SCC pp. 77-79, paras 18-19) "18. This Court in State of Punjab v. Gurmit Singh made the following weighty observations in respect of evidence of a victim of sexual assault: (SCC pp. 395-96, para 8) ''8. ... 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 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. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the 10 evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of the rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.''
19. In the context of Indian culture, a woman--victim of sexual aggression--would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
The Supreme Court in the case of State of Haryana Vs. Basti Ram reported in (2013) 4 SCC 200 has held as under :-
''25. The law on the issue whether a conviction can be based entirely on the statement of a rape victim has been settled by this Court in several decisions. A detailed discussion on this subject is to be found in Vijay v. State of M.P. After discussing the entire case law, this Court concluded in para 14 of the 11 Report as follows: (SCC p. 198) "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."
This decision was recently adverted to and followed in State of Rajasthan v. Babu Meena.'' The Supreme Court in the case of Narendra Kumar Vs. State (NCT of Delhi) reported in (2012) 7 SCC 171 has held as under :-
''20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime.
Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P.and Vishnu v. State of Maharashtra.)
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, the prosecutrix making deliberate improvement on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide Suresh N. Bhusare v. State of Maharashtra.)
23. In Jai Krishna Mandal v. State of Jharkhand this Court while dealing with the issue held: (SCC p. 535, para 4) "4. ... the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in 12 its totality the story projected by the prosecutrix was so improbable that it could not be believed."
24. In Raju v. State of M.P. this Court held: (SCC p. 141, para
10) "10. ... that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary."
The Court however, further observed: (Raju case, SCC p. 141, para 11) "11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication ... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
25. In Tameezuddin v. State (NCT of Delhi), this Court held as under: (SCC p. 568, para 9) "9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide State of Maharashtra v. Madhukar Narayan Mardikar, State of Punjab v. Gurmit Singh and State of U.P. v. Pappu)
27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.
29. However, even in a case of rape, the onus is always on the 13 prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide Tukaram v. State of Maharashtra and Uday v. State of Karnataka.)'' (21) If the facts of this case are considered, then it is clear that the FIR was lodged within a period of 14 hours. In the FIR itself, it was specifically mentioned that because the prosecutrix was earlier molested by the co-accused Ramdeen and as a report was lodged by her, therefore, she was raped and even the co-accused Ramdeen had extended a threat that in case, if she again makes a complaint, then she would be raped and the rape was the result of the report lodged by the prosecutrix. The prosecutrix was cross-examined in detail, however, nothing could be elicited from her cross-examination to prove that the false FIR was lodged or false evidence was given by her because of any enmity. Only suggestion which was given to the prosecutrix was that as the co-accused Ramdeen had spent some money for getting the husband of the prosecutrix released from the police station, therefore, he was demanding his money back and thus, a false FIR of rape was lodged. Tularam (PW3) was cross-examined and a single question was put to him and it was replied by him that he was never arrested by the police in any case. The appellant has not filed any document to show that the husband of the prosecutrix was ever arrested by the police in connection with some other case. Thus, the defence taken by 14 the appellant that as the co-accused Ramdeen had spent some money for getting the husband of the prosecutrix released, therefore, the FIR has been lodged, cannot be accepted. Even otherwise, according to the appellant himself, the co-accused Ramdeen had spent Rs.3,000/- and in the considered opinion of this Court, no woman would put her chastity to stake for such a trivial amount. Accordingly, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the prosecutrix was raped by the appellant as well as co-accused Ramdeen and hence, committed an offence under Section 376(2)(g) of IPC.
(22) Accordingly, the judgment and sentence dated 24/12/2012 passed by 8th Additional Sessions Judge, Gwalior in Sessions Trial No.07/1996 is hereby affirmed.
(23) The appellant was never granted bail by this Court. In case, if the appellant has not completed his jail sentence, then he shall undergo the remaining jail sentence and if he has already been released after undergoing the entire jail sentence, then nothing more is required to be done.
(24) With the aforesaid observation, the appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.08.14 17:58:32 +05'30'