PHOOL SINGH vs. THE STATE OF MADHYA PRADESH

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1520 OF 2021 Phool Singh …Appellant Versus The State of Madhya Pradesh …Respondent J U D G M E N T M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.09.2019 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 875/2000, by which the High Court has dismissed the said appeal preferred by the appellant-accused and has confirmed the judgment and order of conviction and sentence dated 31.07.2000 passed by the learned Sessions Judge, Dewas (hereinafter referred to as the learned ‘trial Court’) in Session Trial No. 05/2000 convicting the accused for the offence punishable under Section 376 IPC and sentencing him to undergo 7 years rigorous imprisonment with fine of Rs.500/- with default stipulation, the original accused has preferred the present appeal. Signature Not Verified Digitally signed by Rajni Mukhi Date: 2021.12.01 15:59:16 IST Reason: th 2. As per the case of the prosecution, in the intervening night of 9 August, 1999 and when the husband of the victim/prosecutrix went to 1 another village and she was alone and she was sleeping in her room, the accused jumped the wall and entered into the room of the prosecutrix. Seeing the accused the prosecutrix woke up and in the light of the bulb she identified the accused. Then the accused pressed the mouth of the prosecutrix and committed rape and thereafter he fled away by jumping the wall. As per the case of the prosecutrix, she narrated the incident to her sister-in-law (Jethani) and mother-in-law but they did not believe her. On the contrary, she was beaten. That thereafter the prosecutrix also told the incident to other family members of her matrimonial house but nobody took any action. The prosecutrix sent the information to her parental house. Thereafter, her uncle and others came to her matrimonial house and the prosecutrix told them about the incident. They took her to parental house. Thereafter, an FIR was lodged on 12.08.1999. She was sent for medical examination. After completion of the investigation, charge-sheet was filed against the accused for the offence punishable under Section 376 IPC. The case was committed to the learned Court of Sessions. Accused pleaded not guilty and therefore he came to be tried for the aforesaid offence. 2.1 In order to prove the charge against the accused, prosecution examined six witnesses including the doctor who examined the prosecutrix on 12.08.1999, prosecutrix-PW3 and the Investigating 2 Officer-PW6. One of the witnesses Rajaram-PW2 did not support the prosecution story and he was declared hostile. The accused took the plea of alibi and according to him he had gone to Indore on the day of incident and he was not in the village on that day. He examined the defence witness as DW1. The learned trial Court did not believe the plea of alibi and DW1 by giving cogent reasons. That thereafter after appreciating the evidence on record, by judgment and order dated 31.07.2000, the learned trial Court convicted the accused for the offence under Section 376 IPC and sentenced the appellant as mentioned hereinabove. 2.2 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court, the appellant herein-accused preferred an appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the present appeal is at the instance of the accused. 3. Shri Aditya Gaggar, learned Advocate appearing on behalf of the accused has vehemently submitted that in the present case the medical evidence does not support the case of the prosecutrix. It is submitted that the doctor in her deposition specifically stated that on examination it was found that there were no external or internal injuries found in the person of the prosecutrix. 3 3.1 It is further submitted that therefore the prosecution case rests solely on the deposition of the prosecutrix only. It is submitted that no other independent witnesses have been examined and/or supported the case of the prosecutrix. 3.2 It is further submitted that there was a delay in lodging the FIR. It is submitted that the incident took place on 9.8.1999 and the FIR was lodged on 12.08.1999, i.e., after a period of three days. It is submitted that therefore the prosecution story does not find any corroboration from medical evidence and in the absence of any signs of injuries, it cannot be ruled out that the physical intercourse even if assumed it had happened, was entire consensual. 3.3 It is further submitted that both, the learned trial Court as well as the High Court have materially erred in not believing DW1, who categorically stated that on the date/night of the alleged incident, the accused was not in the village and was at Indore along with DW1. 3.4 Making the above submissions, it is prayed to allow the present appeal. In the alternative, it is prayed to reduce the sentence to the period already undergone by submitting that by now the accused has undergone two and half years of sentence against the seven years sentence imposed by the courts below. It is also prayed to convert the seven years rigorous imprisonment to seven years simple imprisonment. 4 4. The present appeal is vehemently opposed by Shri Abhay Prakash Sahay, learned Additional Advocate General appearing on behalf of the respondent-State. 4.1 It is submitted that in the present case both, the learned trial Court as well as the High Court have rightly convicted the accused for the offence under Section 376 IPC, relying upon the sole testimony of the prosecutrix/victim. It is submitted that as such there is no reason to doubt the credibility and trustworthiness of the prosecutrix. It is submitted that even no question was asked to the prosecutrix while cross-examining the prosecutrix that a false case was filed against the accused. 4.2 It is submitted that once it is found that the prosecutrix is reliable and trustworthy, in that case, there can be a conviction for the offence of rape – Section 376 IPC, relying upon the deposition of the sole witness/victim. Reliance is placed on the decisions of this Court in the cases of Ganesan v. State, (2020) 10 SCC 573; Santosh Prasad v. State of Bihar, (2020) 3 SCC 443; State of H.P. v. Manga Singh, (2019) 16 SCC 759; and State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 . 4.3 It is submitted that in the case of Pankaj Chaudhary (supra) , it is specifically observed and held by this Court that conviction can be 5 sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration. 4.4 Now so far as the submission on behalf of the accused, relying upon the deposition of the doctor-PW1 that there were no external or internal injuries found in the person of the prosecutrix and therefore the prosecution case is not to be believed, as not supported by any corroborative evidence and/or that it is to be presumed that it was a case of consent is concerned, it is submitted that first of all the prosecutrix has been medically examined after three days of the incident. It is submitted that the prosecutrix is consistent in her evidence right from the very beginning and even in the cross-examination also she has stood by what she has stated and she has fully supported the case of the prosecution. It is submitted therefore that in the facts and circumstances of the case and even in the absence of any external or internal injuries in the person of the prosecutrix, the conviction can be sustained. 4.5 It is further submitted that even there is no suggestion in the cross- examination of the prosecutrix that it was a case of consent. 4.6 It is further submitted by the learned Additional Advocate General appearing on behalf of the State that in the present case on one hand the accused took the plea that it was a case of consent and on the other 6 hand accused took the plea of alibi and that he was not in the village on the date/night of the incident. It is submitted that both are contradictory to each other. It is submitted that in any case cogent reasons have been given by the learned trial Court not to believe DW1 and it is specifically observed by the learned trial Court that deposition of DW1 does not inspire any confidence. 4.7 Making the above submissions and relying upon the aforesaid decisions, it is prayed to dismiss the present appeal. 5. We have heard the learned counsel for the respective parties at length. We have gone through the judgment and order of conviction passed by the learned trial Court convicting the accused for the offence under Section 376 IPC and the impugned judgment and order passed by the High Court. 5.1 At the outset, it is required to be noted that in the present case, the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. The submission on behalf of the 7 accused that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned, the aforesaid has no substance. 5.2 In the case of Ganesan (supra) , this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it is observed and held as under:

8 witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration ( b ) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily 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. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’ 10 . In State of U.P. v. Pappu [ State of U.P. v. Pappu , (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) ‘ 12 . It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical 9 form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’ 11 . In State of Punjab v. Gurmit Singh [ State of Punjab v. Gurmit Singh , (1996) 2 SCC 384], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) ‘ 8 . … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … 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 10

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12 the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 5.3 In the case of Pankaj Chaudhary (supra) , it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:

13 5.4 In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34 , it is observed that testimony of the victim 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 the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In paragraphs 6 and 7, it is observed and held as under:

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6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained. 7. Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be a case of consent is concerned, the aforesaid has no substance at all. No such question was asked, even remotely, to the prosecutrix in her cross-examination. Therefore, the aforesaid submission is to be rejected outright. 8. Now so far as the submission on behalf of the accused that the learned trial Court erred in not believing DW1 and erred in not believing the defence and the plea of alibi that on the night of the incident he had gone to Indore and was not present in the village is concerned, at the outset, it is required to be noted that cogent reasons have been given by 15 the learned trial Court not to believe DW1 and not to believe the plea of alibi raised by the accused. DW1 belongs to the same village of the accused. The reason to go to Indore has been disbelieved by the court. It was the case on behalf of the accused and the defence that as one Babulal had met with an accident, DW1 and the accused had gone to Indore taking Babulal and they had stayed at Indore on that night. However, it was found that Babulal had an injury before two months. Defence had not produced the record of the hospital or examined doctor or employee of the hospital where the said Babulal was taken for treatment. According to the defence, they had stayed in the house of Tulsiram at Indore but the said Tulsiram has not been examined. Even the Babulal has also not been examined. Under the circumstances, the learned trial Court has rightly disbelieved the plea of alibi raised by the accused and has rightly disbelieved DW1. On appreciation of evidence, the learned trial Court has specifically observed that the deposition of DW1 does not inspire any confidence. 9. Now so far as the submission on behalf of the accused that there was a delay of three days in lodging the FIR is concerned, at the outset, it is required to be noted that it was the specific and consistent case on behalf of the prosecutrix that immediately on the occurrence of the incident, she narrated the incident to her sister-in-law (Jethani) and 16 mother-in-law but they did not believe the prosecutrix. On the contrary, they beat her. Even no other family members in her matrimonial home supported the prosecutrix and therefore she sent message to her parental house and thereafter she was taken to her parental house and FIR was lodged. It is very unfortunate that in this case the sister-in-law and mother-in-law though being women did not support the prosecutrix. On the contrary, she was compelled to go to her parental house and thereafter the FIR was lodged. Being women at least the sister-in-law and mother-in-law ought to have supported the prosecutrix, rather than beating her and not believing the prosecutrix. Therefore, when in such a situation, the delay has taken place in lodging the FIR, the benefit of such delay cannot be given to the accused who as such was the relative. 10. Now so far as the prayer on behalf of the accused to reduce the sentence considering the proviso to Section 376 IPC is concerned, as per section 376 IPC pre-amendment, the minimum punishment shall be seven years. However, as per the proviso, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. No exceptional and/or special reasons are made out to impose the sentence of imprisonment for a term of less than seven years. On the contrary and in the facts and circumstances of the case, it can be said that accused 17 has been dealt with lightly by imposing the minimum sentence of seven years rigorous imprisonment only. The victim was the relative. Nobody in the family at matrimonial home supported her and she suffered the trauma. She was compelled to go to her parental house and thereafter she was able to lodge the FIR. The accused has come out with a false case/plea of alibi , which is not accepted by the courts below. Under the circumstances, the prayer of the appellant to reduce the sentence and/or to convert the sentence from seven years rigorous imprisonment to seven years simple imprisonment is not accepted and it is rejected. 11. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The conviction and sentence awarded to the accused – appellant herein for the offence under Section 376 IPC is hereby confirmed. ……………………………….J. [M.R. SHAH] NEW DELHI; ……………………………….J. DECEMBER 01, 2021. [SANJIV KHANNA] 18