JUDGMENT
Manjusha P. Namjoshi, J.
1. The appellants/accused have preferred these two appeals separately under Section 374(2) of the Cr.P.C. against the judgment and order of conviction passed by Sessions Judge, Shajapur in S.T. No. 121/1992 parties being State v. (1) Atmaram (2) Gokul, decided on 30th July,1994. Both the appeals are being disposed of by one judgment. Copy of the judgment in one case may be attached with other.
2. Name of the prosecutrix is not disclosed to maintain secrecy and her imaginary name X is being used.
3. Accused appellants were charged and sentenced as under:
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S. NAME CHARGE Under Section CONVICTION SENTENCE FINE Rs. SENTENCE
No.
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1 Atmaram 376 of IPC, 3(2)(5) 376 of IPC 10 years Rs. 5,000/- In default
SCST (Prevention R.I. of payment
of Atrocities) of fine 6
Act, 1989 months
R.I.
2 Gokul 376/109 of IPC 376/109 of 10 years Rs. 5,000/- 6 months
IPC R.I R.I.
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4. The case of the prosecution is as under:
The victim X had gone to Village Gopipur to look after the welfare of her sister Siddibai as she had paralysis attack. On 8th July,1991 at about 11.00 a.m. in Village Gopipur jangal Nala prosecutrix X was going to answer the call of nature. Accused person caught hold of the victim X. Accused Atmaram fell her down in the deep nala and Gokul gagged her mouth, and thereafter, accused Atmaram committed rape on her. When she made cries the accused ran away. Thereafter the victim X went to her residence that is in the house of Jija (sister’s husband) Motilal(PW-2). Since, the accused ran away towards Badali, therefore, the victim X, her sister Siddibai, Jija Motilal went in search of the accused towards Badali in the direction in which the accused went. At one place three persons were sitting. The victim just identified and picked up one person and said he is the person. By that time she was not knowing his name. Jijaji Motilal did identify as Atmaram uncle in distant relation. Since, Siddibai was not feeling well and it was not then decided whether to make report or not; on that date no report was made. On next day that is on 9th July,1991 crossing distance of 12 Km. from the Village Gopipur reported the matter to Police Station Shajapur where report Ex.P/3 was made. The prosecutrix X was medically examined and Dr.Asha Pandit(PW-1) found that victim appears to be between the age of 16 to 18 years. According to her the victim had no bodily injuries on her person. On examination of vagina 2 fingers could easily be penetrated. Hymen was ruptured. There was no injury on the hymen. The hairs from vagina area were removed for sample. 2 slides were prepared from the smear taken from vagina. The material including peticoat was sealed and handed over to the police for further action. According to Dr.Asha Pandit no definite opinion could be given about rape. Ex.P/1 is her report. The age verification was performed by Dr.Kapil Sahaya. He found that the age of the prosecutrix is above 19 years. The X-Ray of right wrist, elbow and illac crest is Ex.P/5 and X-Ray plate is Ex.P/4. Dr.Kapil Sahay (PW6) also medically examined accused Atmaram and found that he could perform sexual intercourse. Ex.P/6 is his report in this respect.
5. After investigation charge-sheet was filed under Section 376, 376 read with Section 109 of IPC and under Section 3(2-5) the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 as described above. After committal of the case charges were framed as described above and by judgment and order of conviction accused were sentenced as aforesaid.
6. At this stage of the arguments the learned Counsel for the accused did not dispute about the medical report of the victim and that of the accused. Thus it is not necessary to deal with this aspect further.
7. Prosecutrix X has in her Court statement corroborated the FIR Ex.P/3 and stated that since her sister Siddibai, who resides in Gopipur with her husband Motilal (PW-2) had paralysis attack, called her to look after her, therefore, she had gone to Gopipur. On the day of incident she had gone to answer the call of nature while she was sitting on her hams both the accused came from back of a tree where they had hidden themselves. Accused Gokul gagged her mouth and Gokul committed rape. Thereafter, on letting cries accused ran away. The victim reached to her sister’s house narrated the facts to both sister and Motilal (PW-2). All the three went on the way from which the accused ran away. Near Badali three persons were sitting. The victim X identified accused Gokul as the person who committed rape. Motilal took with him but could successfully ran away. In cross-examination it was asked as to why she did not mention about paralysis attack to her sister. It was an omission but has no bearing on merits of the case as she has stated in her statement that she had gone to her sister for her Dekhbhal (to look after welfare). The second contention was though sister was suffering from paralysis even then how could she go. The answer would be sometimes circumstances compel to perform such work which man may not prefer to do in normal course. The circumstances were exceptional. On perusal of para 15 of her statement, she says that Gokul is uncle of Motilal (PW-2) the Jija and therefore, she knows her from before. She has denied that Gokul(A-2)has enmity with Jija Motilal(PW-2). She had identified Gokul on the spot. According to her, it was her first visit to Gopipur but according to Motiram prior to this she had visited twice or thrice.
8. Jija Motilal(PW-2) is another witness. According to him, prosecutrix X had gone to answer the call of nature at about 11-12 noon. She came back crying. On questioning she told her sister and the Jija that Gokul and one more person came their and Gokul gagged her mouth and the other person {Atmaram (A-1)} committed rape and when she yelled both the persons ran away, Motilal, her wife and the victim went to search and could search Atmaram. Thereafter, the matter was discussed among family members. One Jorawarsingh(PW-3) has some fallow land and jungle in Badali, where Jorawarsingh, Nathusingh and Atmaram were sitting. Motilal tried to took Atmaram to his uncle, but the accused ran away. According to him, he discussed the matter with his parents, choukidar Mohanlal and one Mohanlal Patidar. He says that Mohanlal did not advice that the matter be referred to police or not. Motilal(PW-2) has admitted in the middle of para-8 of his evidence that he is working as agricultural labourer with Mohansingh. He does not know whether Mohansingh contested the election and lost to the uncle of accused Atmaram(A-1). But admits that Devisingh contested and won the election. In cross-examination, he further says that he had gone to one Shavlal (perhaps Shivlal) who asked to come in evening to think over the matter whether to report or not. There was a suggestion from the accused side that in fact crime was committed by Nathusingh and Jorawarsingh and that after taking bribe from them, the accused have been falsely implicated. In his statement para-9 he says that he saw abrasions and lacerated wound on the back of the victim.
9. Jorawarsingh (PW-3) had stated that he alongwith Nathusingh and Atmaram(A/1) were sitting on Badali of Gopipur. After some time Motilal(PW-2) came alongwith his wife and the victim(wife’s sister) and asked, who was the person thereupon the victim pointed out to Atmaram(A/1). In cross-examination, he says that he has visiting terms with father of Atmaram. In para-4, he has admitted that Mohansingh had come to the Court. According to him, he does not know whether there is any rivalry between Mohansingh, Anandi Patidar and father of Atmaram.
10. Omprakash J.S.I.(PW-4), Veepin Bihari Dixit, Inspector(PW-5) and D.K.Mishra, T.I. Are police personnels who have investigated the matter.
11. On perusal of the evidence, following conclusions may be drawn.
(1) There was no dispute about the identity of the accused persons.
(2) Report was made after 24 hours of incident though distance between police station and place of occurrence and residence was 12 Km.
(3) There are no marks of injuries on the person of the victim though it is alleged that it was committed on soil surface and that she was knocked down on earth, therefore, her clothes should have stained with dirt and mud. But it is not the prosecution case.
(4) There was no sign of any sperm spermatozoa on the vaginal part or any other part of the person of the prosecutrix or even on peticoat and hairs.
(5) Though married but victim had no cohabitation with her husband as Gauna was not performed even then two fingers could be easily penetrated in her vagina. It is not the evidence that due to rape by one of the accused vagina was ruptured.
(6) In para-2 of her statement victim X (PW-1) says that it was Atmaram (A/1) who lifted the peticoat upwards waist and Gokul (A/2) gagged her mouth.
(7) According to doctor there were no marks of injuries on victim whereas Motilal(PW-2) says there were abrasions and lacerated wounds on back. Prosecution has not given explanation for this fact and facts mentioned in point No.5.
(8) That she is not less than 19 years.
12. The reason for late reporting may not be considered adverse to prosecution as in such type of sensitive cases the victim and relatives always give a second thought to it.
13. There were no marks of injuries on the person of the victim, whereas Motilal (PW-2) do say that there were injuries. No marks of sperms on hairs coupled with other circumstances mentioned above, peticoat and on vagina creates a great doubt about sexual intercourse. In addition the defence version is that the uncle of Atmaram won the election against Mohan with whom Motilal is working as labourer. Without any Court work he came to the Court on the date of hearing of the case, therefore, he was interested in getting the accused convicted. Jorawarsingh(PW-3) admits that Mohansingh has come to the Court. The complainant party had prior consultation with him before lodging report. Thus the suggestion that there was animosity due to elections appears to be correct.
14. The Trial Court has referred to one citation in the opening part of the judgment. The citation is State of Maharashtra v. Chandra Prakash 1990 SC Page 550. In that case the Apex Court held that the evidence of rape victim must carry the same weight as is carried by the injured witness. She is not at par with the accomplice. It is not proper to insist in criminal case corroboration of the evidence of a victim. It was further said that the corroboration is rule of prudence and not of law.
15. The ratio of that citation is that the nature of evidence required to lend assurance to the testimony of the prosecutrix must 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. In case of Nawab Khan v. State of M.P. 1990 Cr.L.J. 1179 (M.P.) the theory of need of corroboration to prosecutrix in rape cases stood exploded.
16. In case of State of U.P. v. Pappu AIR 2005 SC 1248 the Supreme Court held that High Court’s acquittal of the accused based inter -alia on the absence of injury on the prosecutrix was disapproved.
17. The ratio in case of State of U.P. v. Pappu (2005) SCC 594 was conviction can be based on the testimony of prosecutrix if Court is not satisfied with her version it can seek other evidence, direct or circumstantial by way of assurance.
18. Ratio in the case of State of Punjab v. Gurumit Singh is that unless there are compelling reasons, which necessitate looking for corroboration of her statement, the Court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused when her testimony inspires confidence and is found to be reliable. Same view was followed in the case of State of M.P. v. Dayal Sahu .
19. The evidence discussed above hardly reveals that rape was committed by accused No.2 Gokul. But apart from her statement there is no indication of rupture of vagina and intercourse by the accused. Marks of injuries or explanation for want of injuries, no stains on peticoat and hairs does not prima-facie reveals that accused might have committed rape. Since, prima-facie bare statements of prosecutrix and her Jijaji {Motilal (PW-3)} does not inspire confidence that she was ravished, therefore, there needed corroboration. Even in case of victims of hurt the medical evidence should corroborate with the statement of the complainant unless circumstances are otherwise. Though the corroboration may not be a rule of law but prudence requires that when all material facts joint together goes against the bare statement of the victim merely because series of witnesses say that the victim was raped will not mean that she was raped. Under such circumstances corroboration was necessary.
20. The prosecution has also failed to show that the rupture of vagina was fresh. On the contrary the evidence is that two fingers could easily enter in the vagina. It has also failed to give explanation about absence of sperms on hairs of the victim taken from vagina at the time of medical examination. Thus there is no iota of evidence to show that any accused had any physical contact with the victim. The bare statement of victim not supported by any reliable and cogent evidence in the case will not lead to the conclusion that in spite of all these facts her statement should be believed as gospel truth. In this regard attention can be drawn to the case of Salveraj v. State of Tamil Nadu AIR 1976 SC 1970. The ratio of the case was where there are inherent improbabilities in the story put forward by the eye witnesses, it would not be safe to act upon their uncorroborated testimony. In case of Sadashiv Ramrao Hodbe v. State of maharashtra and Ors. Manu/SC/0607/2006 it was held as under:
Accused could be convicted on the sole testimony of the prosecutrix if it was capable of inspiring confidence in the mind of the Court. If version given by the prosecutrix was unsupported by any medical evidence or whole surrounding circumstances were improbable and belief, the case sent up by the prosecutrix, the Court should not act on the solitary evidence of the prosecutrix. Court should be extremely careful in accepting sole testimony of prosecutrix when entire case was improbable and unlikely to happen.
21. In this present case there is no direct or indirect corroboration. Again the accused could successfully brought on record the fact that witness Motilal(PW-2) with whom he works that is Mohanlal @ Motisingh has not cordial relations with the uncle of the accused Atmaram(A/1) who lost election to Atmaram’s uncle. Atmaram is uncle in distant relation of Motilal also. Under these circumstances, it will not be irrelevant to quote that it is dangerous to convict accused on the evidence of the sole complainant in a sexual case because experience shows that in such cases people do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute.
22. Thus the prosecution was under obligation to prove beyond reasonable doubt the offence against the accused. In the present case, there is no iota of evidence to doubt that offence might have been committed. The prosecution has utterly failed to prove any ingredient of offence under Section 376 or 376/511 or even under Section 354 of the IPC. Thus it is a clear case of acquittal and there is no need even to extend any benefit of doubt.
23. The Trial Court has not taken all the points referred to above and stated that inspite of lack of medical evidence and other evidence prosecutrix evidence could be believed. It was not proper for the Trial Court to believe the sole testimony of prosecutrix under the circumstances shown above.
24. No other point was urged on either side.
25. In the result, the two appeals of the appellants accused are allowed. The judgment and order of conviction and sentence passed by the Trial Court is set aside. The accused are on bail, hence, their bail bonds are discharged. Fine amount, if any, deposited by accused be returned to them.