NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE JURISDICTION
CRIMINAL APPEAL No. 133 of 2007
O.M. Baby (Dead) by Lrs. … Appellant (s)
Versus
State of Kerala … Respondent
J U D G M E N T
RANJAN GOGOI, J
The appellant O.M. Baby (since deceased), had been convicted by the
learned Sessions Judge, Wayanad, Kalpetta, Kerala under Sections 376, 506
(ii) and 342 IPC. He was sentenced to undergo rigorous imprisonment for
seven years for the offence under Section 376 IPC; two years for the
offence under Section 506 (ii) IPC and for a period of one year for the
offence under Section 342 IPC. Additionally, for the offence under Section
376 IPC, a fine of Rs.50,000/-, in default, further imprisonment for two
years was imposed on the appellant. The fine amount was directed to be
paid to the prosecutrix (PW 2). The learned trial court had also directed
that the sentences are to run consecutively.
2. Aggrieved, the deceased-appellant filed appeal before the High Court
of Kerala. By the judgment and order dated 13.01.2005, the appeal was
dismissed by the High Court. However, the sentence imposed under Section
376 IPC was reduced to three years. The sentences imposed under Sections
506 (ii) and 342 IPC were maintained but were directed to run
concurrently. Aggrieved by the aforesaid, this appeal has been filed.
3. During the pendency of the appeal, the appellant, O.M. Baby, died on
07.10.2008. On an application filed, the wife of the deceased was allowed
to be pursue the appeal.
4. At the outset, the case of the prosecution, in brief, may be noticed.
According to the prosecution, the family of the victim (PW 2) was
maintaining an account with the appellant, who was running a provision shop
in the locality. Different articles were purchased from the shop of the
accused on credit which were adjusted from time to time by payments made as
well as by the amount due to the family of the victim who used to supply
milk to the accused. The prosecution has alleged that on 25.12.1993 at
about 8 AM, PW 2 who, was then aged about 12 years, went to the shop of the
accused with milk and also to make a few purchases. As 25.12.1993 happened
to be Christmas day, the shop was closed from the front. After PW 2 handed
over milk to the accused she wanted some articles from the shop on credit.
The accused, according to the prosecution, asked PW 2 to go inside the
shop. Thereafter, the accused supplied the articles as demanded by PW 2;
however, soon thereafter, the accused came from behind, put a cloth on the
face of PW 2, took her to adjacent room and closed the same. He then
committed rape on her after putting her into fear of death. Consequently,
according to the prosecution, PW 2 did not offer any resistance and also
did not raise any alarm.
5. The further case of the prosecution is that after PW 2 reached her
house, she told her mother about the incident. As the father of the victim
was away, her mother (PW 4) informed her own brother (PW 3) and after his
arrival, they took the victim to the Taluka Headquarter hospital. However,
as there was no Gynaecologist in the hospital they took the victim to the
District hospital where PW 1 examined her at about midnight of 25.12.1993.
According to the prosecution, PW 1 issued the report of the medical
examination (Ext. P 1) and also informed the Gynaecologist (PW 18) who came
to the hospital and took the vaginal swab and smear of the victim which was
sent for chemical analysis. Thereafter, according to the prosecution,
report of the analysis dated 13.07.1994 (Ext. 2) was submitted.
6. The prosecution had further alleged that as PW 4 (the mother of the
victim) suspected that the doctors of the District hospital where the
victim was taken on 25.12.1993 may not be fair, she had filed a petition in
the Court of the Judicial Magistrate First Class, Sulthan Bathery and on
the basis thereof, the Investigating Officer of the case (PW 13) got the
victim examined by another Gynaecologist (PW 8) in the Medical College
Hospital at Calicut. PW 8 took the vaginal swab and smear of the victim
and sent the same for chemical analysis. The report of the medical
examination of the victim by PW 8 (Ext. P-8) as well as the chemical
analysis report dated 13.07.1994 (Ext. P-9), according to the prosecution,
were received in due course. It may be noticed, at this stage, that while
in the first report of chemical analysis i.e. Ext. P-2 it is recorded that
the sample did not show the presence of spermatozoa, the second report of
analysis (Ext. P-9) was to the contrary.
7. On these facts, the FIR (P-10) was registered and the Investigation
was conducted by PW 13, the Circle Inspector of Police Station, Sulthan
Bathery. The accused was arrested in the course of investigation and he
was also medically examined by PW 7 who submitted the Potency Certificate
of the accused (Ext. P-7). On completion of the investigation, charge
sheet was filed and the case was committed for trial to the Court of
Learned Sessions Judge, Sulthan Bathery who framed charges against the
accused. The accused having denied the charges was put on trial in the
course of which the prosecution examined as many as 14 witnesses and also
Exhibited 15 documents. No evidence was adduced on behalf of the accused
who, however, had proved certain contradictions in the First Information
Report and the evidence of PW 2. The same were marked as Ext. D-1 and D-2.
The accused was also examined under Section 313 Cr. P.C. wherein he denied
the allegations levelled against him. Thereafter, at the conclusion of the
trial, the accused-appellant was convicted and sentenced as already noted
above.
8. Learned counsel for the appellant has submitted that in view of the
two contradictory reports of chemical analysis of the sample of vaginal
swab and smear (Ext. P-2 and P-9), the benefit of the first report (Ext. P-
2) which did not indicate presence of spermatozoa should go in favour of
the accused. In this regard, it has been submitted that the sample in
respect of which Ext. P-2 report was submitted was taken on the day of the
incident itself, i.e. 25.12.1993 whereas the sample, which is the subject
matter of the second report (Ext. P-9) was taken ten days later, i.e. on
06.01.1994. Learned counsel for the appellant has submitted that there is
no material on record to show any lacuna in taking of the first sample and
that the prosecution has failed to satisfactorily explain the two
contradictory reports. Learned counsel has further argued that the
evidence on record discloses that there were no external injuries on any
part of the body of the alleged victim which can corroborate the evidence
of the prosecutrix tendered in court. Pointing out the evidence of PW 2,
learned counsel has urged that there are several inconsistencies in the
evidence of the prosecutrix which would make it unsafe for the court to act
on the uncorroborated testimony of the said witness.
9. Learned counsel, while pointing out the relevant part of the
evidence, has also urged that the uncle of the alleged victim, a Police
Constable, was a tenant in the house of the accused and the said person
bore a grudge against the accused for being evicted from the tenanted
premises. Above all, according to the learned counsel, the family of the
victim owed a sum of about Rs.18,000/- to the accused on account of
purchase of different articles. On account of the said facts, a false and
concocted case has been brought against the accused with the help and
connivance of the Police Constable. Learned counsel, therefore, has
contended that the order of conviction should be set aside so that the
stigma attached to the family of the deceased accused is removed.
10. Controverting the submissions advanced on behalf of the appellant,
the learned State Counsel has submitted that from the evidence of PW 4,
i.e. the mother of the victim, it is clear and evident that she had some
doubts with regard to the fairness of the doctors in the District hospital
and therefore, PW 4 had filed an application dated 04.01.1994 (Ext P-14)
before the concerned court for a second medical examination of the victim.
Accordingly, the second medical examination of the victim was conducted on
06.01.1994 by P.W.8. The sample of vaginal swab and smear was again taken
on 06.01.1994 and the report submitted on 13.07.1994 (Ext. P-9) had
confirmed the presence of spermatozoa. Learned State Counsel has submitted
that the above circumstances show that there is nothing unusual or any
suspicious circumstance surrounding Ext. P-9 to throw any doubt,
particularly, when the second medical examination and the taking of second
set of samples was performed by the doctors of the medical college hospital
to whose no motive or interest can be attributed. Insofar as absence of
injuries on the victim is concerned the learned State Counsel has submitted
that even in Ext. P-1 (Report of the first medical examination held on the
day of occurrence) it is recorded that the victim was in pain. It is
further argued that the alleged discrepancy in the report of the medical
examination conducted by PW 11 to determine the age of the victim (Ext. P
12) and the evidence of PW 2 with regard to bite marks on the breast; and
the further statement of PW 2 in court that she fell unconscious and her
failure to make such statement before the police as pointed out on behalf
of the appellant are minor discrepancies which do not affect the core of
the prosecution case. According to the learned State counsel, the victim
(PW 2) has given a vivid account of the incident and there is no reason why
the same should be disbelieved. So far as role of the Police Constable
(I.O.), uncle of the victim in instituting a false and concocted case on
account of the reasons noticed is concerned, learned State counsel has
pointed that the said facts are not substantiated by the evidence on
records.
11. While it is correct that the two reports of the analysis of vaginal
swab and smear are contradictory, we are of the view that in the present
case the prosecution has clearly proved and established the circumstances
which necessitated the second medical examination of the victim and a
second set of sample of vaginal swab and smear to be taken and sent for
chemical analysis. The aforesaid exercise was carried out on the basis of
the application filed by the mother of the victim (PW 4) before the court
of learned Judicial Magistrate as she had serious doubts with regard to the
fairness of the doctors in the District hospital who had carried out the
first medical examination and had taken the samples of vaginal swab and
smear on the date of the occurrence. The application by PW 4 before the
learned Court was filed without delay, i.e. on 04.01.1994 and the second
round of medical examination and taking of samples was completed on
06.01.1994. No motive and interest can be attributed to PW 8 who had
conducted the second round of medical examination and had taken the second
set of sample of vaginal swab and smear for chemical analysis. That apart,
it is clear from the evidence of PW 8 that after sexual intercourse, though
active spermatozoa would be present for 36 hours, the same would remain in
the vaginal canal for as long as 17 days. There is no evidence to the
contrary. In the aforesaid circumstances we do not see how the second
report of the analysis (Ext. P-9) can be ignored by us.
12. Insofar as absence of injuries on the body of the victim is
concerned, the evidence on record discloses that in the first medical
examination itself, i.e. Ext. P-1 it is recorded that the victim was
walking in pain. The evidence of PW 11, Dr. Shirley Vasu, Assistant
Professor of Forensic Medicine, who had examined the victim for
determination of her age, clearly shows that circum areolar bite mark
contusion of both breast was noted along with laceration of lower lip. In
these circumstances, it cannot be said that in the present case, the
prosecution has not succeeded in showing that the victim had not suffered
any external injuries whatsoever. In any event, absence of injuries or
mark of violence on the person of the prosecutrix may not be decisive,
particularly, in a situation where the victim did not
offer any resistance on account of threat or fear meted out to her as in
the present case. Such a view has already been expressed by this Court in
Gurcharan Singh V. State of Haryana [1] and Devinder Singh V. State of H.P
[2].
13. An argument has been made by the learned counsel for the appellant
that in view of certain inconsistencies in the evidence of the prosecutrix
her testimony should not be accepted without any corroboration. As already
noted, not only corroboration in the form of external injuries is available
in the present case, even otherwise i.e. in the absence of corroboration
the testimony of the victim cannot be ignored, unless the inconsistencies
or contradictions are sufficiently serious to warrant such a course of
action. We have already observed that the inconsistencies in the statement
of PW 2 are on minor aspects which do not affect the core of the case. The
golden rule of appreciation of the testimony of a prosecutrix laid down in
Rameswar Vs. State of Rajasthan[3] and amplified in State of Maharashtra
Vs. Chandraprakash Kewalchand Jain[4] has been consistently followed till
date. It will, therefore, be useful to reproduce herein para 16 of the
judgment of this Court in the above case of State of Maharashtra V
Chandraprakash Kewalchand Jain (supra):
“16. A prosecutrix of a sex offence cannot be put on a par with
an accomplice. She is in fact a victim of the crime. The Evidence
Act nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a
competent 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.”
14. We would further like to observe that while appreciating the evidence
of the prosecutrix, the court must keep in mind that in the context of the
values prevailing in the country, particularly in rural India, it would be
unusual for a woman to come up with a false story of being a victim of
sexual assault so as to implicate an innocent person. Such a view has been
expressed by the judgment of this Court in the case of State of Punjab
vesus Gurmit Singh[5] and has found reiteration in a recent judgment in
Rajinder @ Raju versus State of H.P[6], para 19 whereof may be usefully
extracted :
“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.”
15. Insofar as the involvement of the uncle of the victim, the Police
Constable, in setting up a concocted case against the accused is concerned,
we do not find any evidence whatsoever in support of the contentions
advanced. There is no material on record to show that any rent was due to
the accused by the aforesaid person or that a sum of Rs.18,000/- was due to
the accused from the family of the deceased.
16. For the aforesaid reasons, we do not find any merit in this appeal.
It is accordingly dismissed and the judgment and order of the High Court of
is affirmed.
…………………………………J.
[SWATANTER KUMAR]
………………………………..J.
[RANJAN GOGOI]
New Delhi,
July 3 , 2012
sks
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[1] (1972) 2 SCC 749
[2] (2003) 11 SCC 488
[3] AIR (1952) SC 54
[4] (1990) 1 SCC 550
[5] (1996) 2 SCC 384
[6] (2009) 16 SCC 69
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