Madhya Pradesh High Court
Goverdhan vs State Of Madhya Pradesh on 18 April, 2006
Equivalent citations: 2006 CRI. L. J. 4118, 2007 (1) AJHAR (NOC) 281 (MP) (2006) 45 ALLINDCAS 279 (MP), (2006) 45 ALLINDCAS 279 (MP)
JUDGMENT S.C. Vyas, J.
1. This appeal Under Section 378 of Cr.P.C. has been preferred against the judgment of conviction passed by IIIrd Additional Sessions Judge Ratlam in S.T. No. 213/1992 dated 24.7.1993 holding appellant guilty for the offence punishable Under Section 376 of IPC and sentencing him with rigorous imprisonment for 7 years and fine of Rs. 5,000/- with a direction to undergo three months' additional rigorous imprisonment in default of payment of fine.
2. The case of the prosecution before Trial Court in short was that on 17.5.2002 at about 1.00 pm when prosecutrix PW-1 was alone in her residence, then appellant-accused Goverdhan came there and enquired about her husband. Prosecutrix informed him that her husband has gone out and will be coming back by evening. Thereafter appellant while talking to the prosecutrix entered inside her house wielded a knife from his pocket0and threatened compLainant-prosecutrix and thereafter committed forcibly sexual intercourse with her, after completing the act he gave one rupee note to the prosecutrix and asked her not to tell anybody about this incident and thereafter left the place. The incident was narrated by the prosecutrix to her husband next day evening when he came back, then on third day FIR Ex.P-1 was given in writing to police Alote, on the basis of which offence Under Section 376 of IPC was registered at Ex.P-8. The matter was investigated by the police, prosecutrix was sent for her medical examination, appellant was also arrested and was medically examined. Witnesses were interrogated and their statements were recorded Under Section 161 of Cr.P.C. and thereafter, charge-sheet was filed. Learned Additional Sessions Judge, Ratlam conducted the trial before whom appellant pleaded innocence and false implication due to previous enmity with the family of the prosecutrix, however, learned Trial Judge found appellant guilty and convicted and sentenced him as stated hereinabove.
3. Before learned Trial Court prosecution examined as many as seven witnesses, prosecutrix PW-1, was the only material witness regarding the incident. MangiLai PW-2 is the husband of the prosecutrix, Gordhan PW-3 is a witness of spot map Ex.P-2, Jagdeesh PW-4 is a witness of arrest memo Ex.P-3, Dr. Asharani PW-5 examined prosecutrix and gave a negative report. Dr. Anil Panor PW-6 examined the appellant and found him capable of performing sexual act and Veerendra Singh PW-7 is the Investigating Officer.
4. Prosecutrix PW-1 in her statement before Trial Court deposed that on the date of incident at about 12.00 noon when she was alone at her home and her husband went out to work as labourer then appellant came there and enquired regarding her husband. When prosecutrix informed him that her husband will come in the evening then appellant entered inside her room pushed her down on the floor and committed sexual intercourse with her. While doing so he first undressed the prosecutrix and thereafter undressed himself and committed sexual intercourse for about half an hour. When prosecutrix tried to scream then appellant shut her mouth by his palm and after completing rape appellant shown her a knife and threatened her not to tell anybody regarding this incident and thereafter left the place of the Incident. She has further deposed that in the same day evening her husband came and she narrated the story to her husband and threafter her uncle-in-law got a typed report on which she put her thumb impression and report Ex.P-1 was given by her to the police.
5. Learned Counsel for the appellant submitted that story narrated by the prosecutrix does not inspire confidence and the learned Trial Court totally failed to consider the material contradictions and omissions which have come in the statement of this witness and the FIR lodged by her. He has further stated that the story narrated by the prosecutrix is totally false because admittedly, there was pre-existing enmity between the prosecutrix and the appellant. He has also submitted that there was no reason to lodge the report after two days from the time of the occurrence and prosecution has totally failed to expLain the delay. On the basis of these arguments learned Counsel further submitted that appellant has been falsely implicated in this case due to previous enmity.
6. Per contra, learned Government Advocate supported the Judgment passed by learned Trial Court and submitted that prosecutrix PW-1 is a wholly reliable witness and she cannot be treated as accomplice of the offence, but her statement should be evaluated by the Court like an injured witness who is victim of the offence.
7. Before proceeding further it will be useful to have a look on the law which have developed regarding evaluation statement given by prosecutrix. Long back in the case of Rameshwar v. State of Rajasthan , Hon'ble Supreme Court said that "necessity of corroboration is a matter of prudence except where circumstances make it safe to dispense with it." Then again in the case of Krishan Lal v. State of Haryana , Hon'ble Supreme Court further observed that "In rape case, the Court must bear in mind human psychology and behavioral probability while assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbablise the hypothesis of false Implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her compLaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and Injury on her private parts unless she has been subjected to the torture of rape.
8. In the case of Sheikh Zakir v. State of Bihar , again it was observed that Even though a victim of rape cannot be treated as an accomplice, on account of a long line of judicial decisions rendered in our country over a number of years, the evidence of the victim in a rape case is treated almost like the evidence of an accomplice requiring corroboration.
But, if a conviction is based on the evidence of a prosecutrix without any corroboration, it will not be illegal on that sole ground. In the case of a grown up and married woman it is always safe to insist on such corroboration. Wherever corroboration is necessary it should be from an independent source but it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both.
9. Later on in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , it was held by the Supreme Court that 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. Why should the evidence of the girl or the woman who compLains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male chauvinism in a male dominated society.
It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons.
The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.
10. In State of Maharashtra v. Chandraprakash Kewal Chand Jain , the Supreme Court had an occasion to point out that "a woman who is a victim of a 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. She is not in the category of a child witness or an accomplice and, therefore, the rule of prudence that her evidence must be corroborated in material particulars has no application, at the most the Court may look for some evidence which lends assurance."
11. In the case of State of Punjab v. Gurmit Singh the Hon'ble Supreme Court pointed out as under:
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 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 within the 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 taw 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 uniformly lest that type of rigidity in the shape of 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.
12. Therefore, as stated hereinabove the law developed on the point is very clear that the victim of the offence of rape being not accomplice does not require any independent corroboration and conviction in such cases can very well be based upon the testimony of prosecutrix, unless there are compelling reasons which necessitate looking for corroboration of her statement. The Court while appreciating of the evidence of the 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 before recording conviction on the basis of her testimony.
13. Coming back to the facts of the case there appears some disturbing factor which has escaped from the serious notice of the Trial Court. The first and foremost thing is that the prosecutrix herself has admitted in her cross-examination in Paragraph Nos. 5 and 6 that the appellant constructed a wall and blocked the way of the members of the family of the prosecutrix just 15 to 20 days back from the date of incident. Apart from constructing the wall he also put other obstructions and, therefore, that matter was reported by the husband of the prosecutrix to the police and then on interception of police the way was opened. She has also admitted that about 1 V4 month back accused also lodged a compLaint against her and her husband that they had blocked the way of the accused and on the basis of that compLaint police came at that time also and opened the passage of the accused. These facts indicates that there was recent enmity between the two parties and both were levelling charges of blocking passage of each other and were making compLaints to the police, so the question is that whether in such circumstances on the date of offence accused could dare to come to the prosecutrix and had some talk with her and then after entering in her own house can he perform the act of sexual intercourse in the day time in her own house.
14. Another disturbing factor is this that the prosecutrix again admitted in paragraph No. 12 of her statement that just two days before the date of incident again a compLaint was lodged by the accused against herself, her husband, her mother-in-law and her father-in-law regarding blocking of passage and regarding quarrel on this subject between accused and her family. She has also admitted that for last 8 to 10 years accused and the members of her family were not on talking terms. This admission also goes to the root of the case and improbabilized the incident.
15. Again, she has admitted in Paragraph 8 of her statement that in her locality all persons being of the same community and caste and use to remain in their house during day time. It is pertinent to mention here that including the prosecutrix probably all other residents of the locality also belong to 'Mehtar' community. Usually, members of that community of the village are required to work in the early morning, so in all probabilities and also as per the admission of the prosecutrix other inhabitants of the locality were in their house at the time of the incident, so again question arises that when house of the prosecutrix is in that thick locality where other than inhabitants are present whether accused could dare to commit a rape with the wife of his enemy in the day time in her own house.
16. Prosecutrix has stated as mentioned hereinabove that the accused/appellant first undressed her and thereafter undressed himself and committed the act of sexual intercourse with her for about half a hour and was laying on her during this time. It appears Just improbable to do all this in the house of an enemy in the day time in presence of other inhabitants of the locality and when act was being committed then the prosecutrix had not tried to even scream. Her explanation in this regard was that when she tried to scream the accused/appellant put his hand on her mouth but this explanation does not find place in the written FIR Ex.P 1.
17. In the FIR Ex.P-1 it was stated that the husband of the prosecutrix was out of village and had come next day evening then on that day the report was lodged, but before Court prosecutrix stated that her husband was very well in village and was working in the field of some one and came back in the same evening. This shows that whatever has been stated in the FIR Ex.P-1 which was submitted to police after getting it typed was not wholly true and on many facts prosecutrix gave contradictory statement before Court.
18. If the husband of the prosecutrix was in the village itself, and had come in the evening then nothing prevented her and her husband to lodge the report on the same day evening because the police station is only 10 kms away from her village and her village was very well connected by road from Alote, where the police station is situated. Investigating Officer Vireendra PW-17 has stated in his cross-examination that village Pipliya Sisodiya (the place of incident) is only 10 kms away from Alote and many buses used to pass between the two places in a day. So it was not impossible for the prosecutrix to lodge the report even in the evening of the same day when her husband came back from his work. No explanation has been given by the prosecution for not lodging the FIR on the same day evening and during the whole of the next day and up to the evening of the third day because the report was lodged on third day at 6.05 p.m. in the evening and, therefore, on account of this unexpLained delay in lodging report also it appears that the incident was not happened as it has been stated in the FIR.
19. The prosecutrix has also admitted that her father-in-law, uncle-in-law, son etc. were all there in the village and even when her husband was not there, then also she could have narrated the story to her father-in-law, mother-in-law, uncle-in-law etc. but nothing was said by her to them, and this fact also causes a serious dent on the story narrated by her in the Court.
20. Her husband MangiLai PW-2 has also said that on the date of incident he came back in the evening after performing his labour work then his wife narrated the story to him, then on the next date report was lodged by him and for that purpose he, his wife and uncle went to Alote. This part of his statement is belied by contents of Ex.P-1 which shows that FIR got typed on 19.5.1992 and further vide Ex.P-8 by which offence was registered, which shows that the written report was registered on 19.5.1992, therefore, it appears that the husband of the prosecutrix as well as prosecutrix herself told a lie on a very vital aspect of the matter by saying that the report was lodged on the next date. When this fact is considered along with the fact that looking to the recent as well as long standing enmity between the parties and their act of lodging reports against each other to the police and that the parties were not even in talking terms the story of the prosecution does not inspire confidence.
21. Dr. Asharani PW-5 conducted medical examination of the prosecutrix and found nothing to suggest that she was subjected to sexual assault or rape. She is a married woman, her hymen was old ruptured and no injury was found either on her body or on her private parts, therefore, the report of the medical examination also does not provide any corroboration to the statement given by prosecutrix.
22. Examining the case of prosecution from all angles this possibility cannot be ruled out that because of the long standing and the recent enmity false charge of rape was levelled against the apellant/accused by the prosecutrix, with the consent of the members of her family, including her husband and, therefore, it is not safe to hold beyond all reasonable doubt that the accused-appellant had committed rape with the prosecutrix.
23. Resultantly, as aforesaid prosecution totally failed to prove the charge of the offence punishable Under Section 376(1) of the IPC, therefore, this appeal succeeds and is allowed the judgment of conviction and the order of sentenced passed by learned Trial Court are set aside and the appellant is acquitted of the charge punishable Under Section 376(1) of IPC. He is on ball. His surety is discharged from his liability.