Full Judgment Text
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CASE NO.:
Appeal (crl.) 8 of 1998
PETITIONER:
State of M.P.
RESPONDENT:
Dayal Sahu
DATE OF JUDGMENT: 29/09/2005
BENCH:
H.K. SEMA & G.P.MATHUR
JUDGMENT:
J U D G M E N T
H.K.SEMA,J
The respondent-accused Dayal Sahu was put to trial under Section
376 IPC. He was convicted by the Trial Court and sentenced to seven years
imprisonment and a fine of Rs.500/-, in default three months’ rigorous
imprisonment. The High Court, on appeal preferred by the accused, set-
aside the conviction recorded by the Trial Court and acquitted the accused
(respondent herein) solely on the ground for non-examination of PW-9 Dr.
V.M. Pursule, as according to the High Court, non-examination of PW-9
prejudiced the case of the accused for non-providing of an opportunity to the
accused to cross-examine the doctor. Being aggrieved, this appeal is
preferred by the State of Madhya Pradesh by special leave.
Briefly stated the facts of the prosecution case are as follows:-
In the night of 1.4.1991 the accused-respondent Dayal Sahu who was
a relative of complainant came to the village Mandvi with another man
Jagdish as guests. The prosecutrix-Santribai, wife of PW-2 Ramdas was
sleeping inside the house. Other family members were sleeping outside the
house with guests. At about 4.00 A.M. the accused entered into the room of
prosecutrix in the guise of her husband and committed rape upon her by
removing all her clothes. On query by the prosecutrix as who he was, the
accused pressed her mouth; only then the prosecutrix came to know that the
man who had intercourse with her was not her husband. Thereafter, she
awakes her husband and other members. The husband of prosecutrix
entered the room and lit lantern and found the accused Dayal Sahu present
there. The accused made a confessional statement for avoiding any event of
demoral nature and to avoid an apprehension of beating. The matter was
reported to the Kotwar of the village, who took the prosecutrix to the police
station and reported the matter on 1.4.1991 itself wherein the fact was
recorded regarding the commission of rape with Santribai.
The prosecution examined as many as 14 witnesses. Amongst others,
the prosecutrix-Santribai was examined as PW-1. Ramdas, the husband of
the prosecutrix was examined as PW-2. Puslibai, the mother-in-law of the
prosecutrix was examined as PW-3, who was declared hostile by the Trial
Court. She was cross-examined by Public Prosecutor, when she admitted
that she is hard of hearing. Deorao Kotwar, who took the prosecutrix to the
police station and got the report lodged, was examined as PW-4. Chindhiye,
the father-in-law of the prosecutrix was examined as PW-5. Dr.V.M.
Pursule, who examined the accused and on examination of his private parts
found that the accused was healthy and capable of committing sexual
intercourse, was examined as PW-9. It appears that the prosecutrix was also
medically examined by a lady doctor and her slide, pubic hair, saree,
underwear and petticoat, which she was wearing at the time of incident, had
been sent to F.S.L. Sagar for examination. The report of F.S.L. was also
received vide Ex.P.8 and Ex.P.9. According to the report, white and hard
stains were found on the underwear of the accused and on the saree and
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petticoat of the prosecutrix. As per Ex.P-9 report, stains of semen and
sperms were found on the underwear of accused.
Considering the fact that the point involved in this appeal is within a
narrow compass, it is not necessary to recite entire facts, which are admitted
by the Trial Court and confirmed by the High Court.
In this case, the Trial Court examined the evidence of the P.W.1-
prosecutrix, P.W.2-husband, P.W.4-Deorao Kotwar and P.W.5- father in law
and came to a conclusion that their testimony inspires confidence and
recorded the conviction as aforesaid. As would appear from the judgment of
the High Court four contentions have been raised by the respondent herein
before the High Court. These are:-
(1) That it is a case of high degree contradiction between
the statements of PW-1, 4 and 5 on account of which
the prosecution version becomes doubtful.
(2) The prosecutrix was medically examined but the
doctor who examined her did not come in the witness
box to prove the report or the prosecution did not take
care to examine the doctor.
(3) Serologist’s report is on the record but the same was
not proved.
(4) Prosecution witnesses were not reliable.
The first contention has been repelled by the High Court as under:-
"So far as the first point is concerned, regarding
contradictions between the statements of PW-1, PW-4,
and PW-5 are concerned, they are very minor and such
contradictions in the case of the nature cannot be given
any weightage. The trial Court has considered this aspect
and I find no reason to disagree with the findings
recorded by the trial court.
Contention No.3, the High Court has answered as under:-
"So far as the Serologist’s report is concerned, that report
is on record as Exs. P-8 and P-9."
Contention No.4 has also been repelled by the High Court as under:-
"The submission that the prosecution witnesses were not
reliable is without any substance. The only thing which
creates a doubt regarding the defence version was not
accepted as the father of the appellant Ranglal (DW-1)
was a labourer and there is no explanation as to why this
person took a sum of Rs.10,000/- to the house of the
prosecutrix which was not explained and it was also not
explained as to wherefrom that money was obtained.
Moreover, a labourer is not supposed to be in possession
of such an amount. The medical report is proved by Shri
S.R. Choudhary, Assistant sub Inspector of Police, who
conducted the investigation but this by itself is not
sufficient as the accused-appellant was deprived of an
opportunity to cross-examine the doctor who conducted
the medical examination but did not enter the witness box
to give evidence. Even the report which is on the record,
mentions that no definite opinion can be given regarding
commission of rape. I think it is a case where the
appellant is entitled for benefit of doubt."
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Regarding contention No.2 - non-examination of a lady doctor who
medically examined the prosecutrix-PW.1, the High Court was of the
opinion that non-examination of doctor and non-providing of an opportunity
to the accused-person to cross-examine the doctor is a fatal one and is a
great lacuna in the prosecution case. On the basis of this view, the High
Court acquitted the accused on benefit of doubt.
The view taken by the High Court, in our view, is perverse, erred in
law as well as on fact and contrary to the established law laid down by this
Court in a catena of decisions. The High Court having accepted the
statements of P.Ws.1, 2, 4 and 5 as having inspired confidence yet acquitted
the accused by giving him benefit of doubt in an offence of rape.
In the case of State of Punjab vs. Gurmit Singh, (1996) 2 SCC
384, it has been held that a conviction can be founded on the testimony of
prosecutrix alone unless there are compelling reasons for seeking
corroboration. It is further held that her evidence is more reliable than that
of an injured witness.
It was pointed out in paragraph 8 at scc pp.395-396 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 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 leveled 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 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 rule of law is
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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 a
probable".
In the case of Sheikh Zakir vs. State of Bihar, (1983) 4 SCC 10,
in paragraph 8 at scc p.18 it has been held:-
"Insofar as non-production of a medical examination report and
the clothes which contained semen, the trial court has observed
that the complainant being a woman who had given birth to
four children it was likely that there would not have been any
injuries on her private parts. The complainant and her husband
being persons belonging to a backward community like the
Santhal tribe living a remote area could not be expected to
know that they should rush to a doctor. In fact the complainant
has deposed that she had taken bath and washed her clothes
after the incident. The absence of any injuries on the person of
the complainant may not by itself discredit the statement of the
complainant. Merely because the complainant was a helpless
victim who was by force prevented from offering serious
physical resistance she cannot be disbelieved. In this situation
the non-production of a medical report would not be of much
consequence if the other evidence on record is believable. It is,
however, nobody’s case that there was such a report and it had
been withheld."
In the case of Ranjit Hazarika vs. State of Assam (1998) 8 SCC
635, it was pointed out in paragraph 5 at scc.p 637 as under:-
"The argument of the learned counsel for the appellant that the
medical evidence belies that testimony of the prosecutrix and
her parents does not impress us. The mere fact that no injury
was found on the private parts of the prosecutrix or her hymen
was found to be intact does not belie the statement of the
prosecutrix as she nowhere stated that she bled per vagina as a
result of the penetration of the penis in her vagina. She was
subjected to sexual intercourse in a standing posture and that
itself indicates the absence of any injury on her private parts.
To constitute the offence of rape, penetration, however slight, is
sufficient. The prosecutrix deposed about the performance of
sexual intercourse by the appellant and her statement has
remained unchallenged in the cross-examination. Neither the
non-rupture of the hymen nor the absence of injuries on her
private parts, therefore, belies the testimony of the prosecutrix
particularly when we find that in the cross-examination of the
prosecutrix, nothing has been brought out to doubt her veracity
or to suggest as to why she would falsely implicate the
appellant and put her own reputation at stake. The opinion of
the doctor that no rape appeared to have been committed was
based only on the absence of rupture of the hymen and injuries
on the private parts of the prosecutrix. This opinion cannot
throw out an otherwise cogent and trustworthy evidence of the
prosecutrix. Besides, the opinion of the doctor appears to be
based on "no reasons".
In the case of State of Rajasthan vs. N.K, the accused (2000) 5
SCC 30, it was pointed out in paragraph 9 at scc p.38 as under:-
"Having heard the learned counsel for the parties we are of the
opinion that the High Court was not justified in reversing the
conviction of the respondent and recording the order of
acquittal. It is true that the golden thread which runs
throughout the cobweb of criminal jurisprudence as
administered in India is that nine guilty may escape but one
innocent should not suffer. But at the same time no guilty
should escape unpunished once the guilt has been proved to
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hilt. An unmerited acquittal does no good to the society. If the
prosecution has succeeded in making out a convincing case for
recording a finding as to the accused being guilty, the court
should not lean in favour of acquittal by giving weight to
irrelevant or insignificant circumstances or by resorting to
technicalities or by assuming doubts and given benefit thereof
where none exists. A doubt, as understood in criminal
jurisprudence, has to be a reasonable doubt and not an excuse
for a finding in favour of acquittal. An unmerited acquittal
encourages wolves in the society being on the prowl for easy
prey, more so when the victims of crime are helpless females.
It is the spurt in the number of unmerited acquittals recorded by
criminal courts which gives rise to the demand for death
sentence to the rapists. The courts have to display a greater
sense of responsibility and to be more sensitive while dealing
with charges of sexual assault on women. In Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217,
this Court observed that 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. This Court deprecated viewing
evidence of such victim with the aid of spectacles fitted with
lenses tinted with doubt, disbelief or suspicion."
A plethora of decisions by this Court as referred to above would show
that once the statement of prosecutrix inspires confidence and accepted by
the courts 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 courts 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. It is also noticed that minor
contradictions or insignificant discrepancies should not be a ground for
throwing out an otherwise reliable prosecution case. Non-examination of
doctor and non-production of doctor’s report would not cause fatal to the
prosecution case, if the statements of the prosecutrix and other prosecution
witnesses inspire confidence. It is also noticed that the Court while
acquitting the accused on benefit of doubt should be cautious to see that the
doubt should be a reasonable doubt and it should not reverse the findings of
the guilt on the basis of irrelevant circumstances or mere technicalities.
Reverting back to the facts of the case, the testimony of prosecutrix-
PW.1 that she has been ravished by the accused at 4.00 A.M. on 1.4.1991
remains unimpeached. She was subjected to cross-examination but nothing
could be elicited to demolish the statement-in-chief. Her statement was
corroborated by the statements of PWs 2, 4 and 5 in material particular,
coupled with FSL report Ex.P-8 and Ex.P-9, which has been accepted by the
Trial Court and even by the High Court. The High Court was totally erred in
law in recording the acquittal of the accused by giving him benefit of doubt
for non-examination of doctor, thereby committed grave miscarriage of
justice.
In the result, this appeal is allowed. The order of acquittal passed by
the High Court is set-aside. The order of conviction and sentence recorded
by the Trial Court is restored. The respondent-accused Dayal Sahu is on
bail. His bail bonds and surety are cancelled and he is directed to be taken
back into custody forthwith to serve out the remaining part of sentence.
Compliance report should be sent to this Court within one month.