Sec.450 and 376 IPC - Trial court convicted - High court confirmed the same - another accused was acquitted as the Victim not supported the case of prosecution - Apex court held that absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused. Accordingly, we allow this appeal, set aside the conviction of the appellant and acquit him of the charge.=
against the conviction and sentence of
the appellant for offences under Sections 450 and 376 of the Indian Penal
Code (IPC) for which the appellant stands sentenced to undergo rigorous
imprisonment for seven years under both heads but the sentences are to run
concurrently, apart from being sentenced to pay fine.=
as per FIR is that on 19th April, 1993, when
the prosecutrix (PW 1) was sleeping in her house at 1.00 A.M., the
appellant along with co-accused Sahab Singh @ Mutta entered the house of
the prosecutrix and both of them committed rape on the prosecutrix and then
fled away.
They were carrying knife which was shown to the prosecutrix to
threaten her if she raised alarm.
The prosecutrix narrated the incident to
her husband and lodged First Information Report at the Police Station on
the next day. After investigation both the accused were sent up for trial.
The prosecutrix did not support the version against co-accused Sahab Singh
@ Mutta. Accordingly, he was acquitted by the trial Court.
Relying upon
her version supported by her husband Balkishan (PW 2)
and Kotwar of the village Manaklal (PW 3), the trial Court convicted and
sentenced the appellant which has been confirmed by the High Court. =
The
discrepancies pointed out are as follows :
(i) Though initially, two persons were named and it was alleged that both
threatened the prosecutrix with a knife, version at the trial was
different and only the appellant has been named.
(ii) The prosecutrix gave affidavit dated 23th April, 1993 three days
after the lodging of the FIR, disowning the version and exonerating the
appellant. The said affidavit was duly acted upon by the trial Court, as
the prosecutrix appeared in Court and supported the contents of the
affidavit, for granting the accused anticipatory bail vide Order dated 29th
April, 1993. The order of anticipatory bail reads as under:
“Affidavit of the complainant perused. According to which Village Patel
Shiv Kumar had put pressure upon the complainant and got a false report
registered. Additional Public Prosecutor has not objected the bail
application.
Bail of accused Mutta is already granted on this ground hence this accused
is also being granted benefit of bail and it is ordered that if in this
case applicant is arrested then he should be released on bail bond of
Rs.5,000/- and surety.”
(iii) PW 3 has admitted that husband of the prosecutrix had enmity with the
appellant. The medical report inter alia read as follows :
“………..No signs of injury anywhere………. One cream color petticoat on which
there no stains of looking like Semenal stains present……..”
(iv) The statement of the prosecutrix has also contradictions, as at one
place she states that she had seen the accused only when he was escaping
and not before, while at the other place she gave a different statement.
Similarly her husband PW 2 has contradicted the prosecutrix about the
presence of the accused when PW 2 arrived. According to
PW 2, accused was still at the house and ran away only when he opened the
door while according to prosecutrix the accused had ran away before arrival
of her husband.
5. We find that the above discrepancies are supported by the record.=
Thus, while absence of injuries or absence of raising alarm or delay
in FIR may not by itself be enough to disbelieve the version of prosecutrix
in view of the statutory presumption under Section 114A of the Evidence Act
but if such statement has inherent infirmities, creating doubt about its
veracity, the same may not be acted upon.
We are conscious of the
sensitivity with which heinous offence under Section 376, IPC has to be
treated but in the present case the circumstances taken as a whole create
doubt about the correctness of the prosecution version.
We are, thus, of
the opinion that a case is made out for giving benefit of doubt to the
accused.
8. Accordingly, we allow this appeal, set aside the conviction of the
appellant and acquit him of the charge.
2014- Sept. Month - http://judis.nic.in/supremecourt/filename=41926
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2358 of 2010
MUNNA ... APPELLANT
VERSUS
STATE OF M.P. ... RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction and sentence of
the appellant for offences under Sections 450 and 376 of the Indian Penal
Code (IPC) for which the appellant stands sentenced to undergo rigorous
imprisonment for seven years under both heads but the sentences are to run
concurrently, apart from being sentenced to pay fine.
2. Case of the prosecution as per FIR is that on 19th April, 1993, when
the prosecutrix (PW 1) was sleeping in her house at 1.00 A.M., the
appellant along with co-accused Sahab Singh @ Mutta entered the house of
the prosecutrix and both of them committed rape on the prosecutrix and then
fled away. They were carrying knife which was shown to the prosecutrix to
threaten her if she raised alarm. The prosecutrix narrated the incident to
her husband and lodged First Information Report at the Police Station on
the next day. After investigation both the accused were sent up for trial.
The prosecutrix did not support the version against co-accused Sahab Singh
@ Mutta. Accordingly, he was acquitted by the trial Court. Relying upon
her version supported by her husband Balkishan (PW 2)
and Kotwar of the village Manaklal (PW 3), the trial Court convicted and
sentenced the appellant which has been confirmed by the High Court.
3. We have heard learned counsel for the parties.
4. Learned counsel for the appellant has pointed out that there are
major discrepancies in the version of the prosecution which create doubt
about the veracity of the prosecution case against the appellant. The
discrepancies pointed out are as follows :
(i) Though initially, two persons were named and it was alleged that both
threatened the prosecutrix with a knife, version at the trial was
different and only the appellant has been named.
(ii) The prosecutrix gave affidavit dated 23th April, 1993 three days
after the lodging of the FIR, disowning the version and exonerating the
appellant. The said affidavit was duly acted upon by the trial Court, as
the prosecutrix appeared in Court and supported the contents of the
affidavit, for granting the accused anticipatory bail vide Order dated 29th
April, 1993. The order of anticipatory bail reads as under:
“Affidavit of the complainant perused. According to which Village Patel
Shiv Kumar had put pressure upon the complainant and got a false report
registered. Additional Public Prosecutor has not objected the bail
application.
Bail of accused Mutta is already granted on this ground hence this accused
is also being granted benefit of bail and it is ordered that if in this
case applicant is arrested then he should be released on bail bond of
Rs.5,000/- and surety.”
(iii) PW 3 has admitted that husband of the prosecutrix had enmity with the
appellant. The medical report inter alia read as follows :
“………..No signs of injury anywhere………. One cream color petticoat on which
there no stains of looking like Semenal stains present……..”
(iv) The statement of the prosecutrix has also contradictions, as at one
place she states that she had seen the accused only when he was escaping
and not before, while at the other place she gave a different statement.
Similarly her husband PW 2 has contradicted the prosecutrix about the
presence of the accused when PW 2 arrived. According to
PW 2, accused was still at the house and ran away only when he opened the
door while according to prosecutrix the accused had ran away before arrival
of her husband.
5. We find that the above discrepancies are supported by the record.
6. We are conscious that testimony of the prosecutrix is almost at par
with an injured witness and can be acted upon without corroboration as held
in various decisions of this Court. Reference may be made to some of the
leading judgments.
In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat.[1], this Court held
as under :
“9. 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 the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion? To do so is to
justify the charge of male chauvinism in a male dominated society. We must
analyze the argument in support of the need for corroboration and subject
it to relentless and remorseless cross-examination. And we must do so with
a logical, and not an opinionated, eye in the light of probabilities with
our feet firmly planted on the soil of India and with our eyes focussed on
the Indian horizon. We must not be swept off the feet by the approach made
in the western world which has its own social milieu, its own social mores,
its own permissive values, and its own code of life. Corroboration may be
considered essential to establish a sexual offence in the backdrop of the
social ecology of the western world. It is wholly unnecessary to import the
said concept on a turnkey basis and to transplant it on the Indian soil
regardless of the altogether different atmosphere, attitudes, mores,
responses of the Indian society, and its profile. The identities of the two
worlds are different. The solution of problems cannot therefore be
identical.
10. Without the fear of making too wide a statement, or of overstating the
case, it can be said that rarely will a girl or a woman in India make false
allegations of sexual assault …….. 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, not so sophisticated, and unsophisticated
society. Only very rarely can one conceivably come across an exception or
two and that too possibly from amongst the urban elites. Because (1) A girl
or a woman in the tradition-bound non-permissive society of India would be
extremely reluctant even to admit that any incident which is likely to
reflect on her chastity had ever occurred. (2) She would be conscious of
the danger of being ostracized by the society or being looked down by the
society including by her own family members, relatives, friends, and
neighbours. (3) She would have to brave the whole world. (4) She would face
the risk of losing the love and respect of her own husband and near
relatives, and of her matrimonial home and happiness being shattered. (5)
If she is unmarried, she would apprehend that it would be difficult to
secure an alliance with a [pic]suitable match from a respectable or an
acceptable family. (6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself. (7) The fear of being
taunted by others will always haunt her. (8) She would feel extremely
embarassed in relating the incident to others being overpowered by a
feeling of shame on account of the upbringing in a tradition-bound society
where by and large sex is taboo. (9) The natural inclination would be to
avoid giving publicity to the incident lest the family name and family
honour is brought into controversy. (10) The parents of an unmarried girl
as also the husband and members of the husband’s family of a married woman,
would also more often than not, want to avoid publicity on account of the
fear of social stigma on the family name and family honour. (11) The fear
of the victim herself being considered to be promiscuous or in some way
responsible for the incident regardless of her innocence. (12) The
reluctance to face interrogation by the investigating agency, to face the
court, to face the cross-examination by counsel for the culprit, and the
risk of being disbelieved, acts as a deterrent.”
In State of Maharashtra vs. Chandraprakash Kewalchand Jain[2], this Court
held as under :
“15. It is necessary at the outset to state what the approach of the court
should be while evaluating the prosecution evidence, particularly the
evidence of the prosecutrix, in sex offences. Is it essential that the
evidence of the prosecutrix should be corroborated in material particulars
before the court bases a conviction on her testimony ? Does the rule of
prudence demand that in all cases save the rarest of rare the court should
look for corroboration before acting on the evidence of the prosecutrix ?
Let us see if the Evidence Act provides the clue. Under the said statute
‘Evidence’ means and includes all statements which the court permits or
requires to be made before it by witnesses, in relation to the matters of
fact under inquiry. Under Section 59 all facts, except the contents of
documents, may be proved by oral evidence. Section 118 then tells us who
may give oral evidence. According to that section all persons are competent
to testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to
those questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind. Even in the case of an
accomplice Section 133 provides that he shall be a competent witness
against an accused person; and a conviction is not illegal merely because
it proceeds upon the uncorroborated testimony of an accomplice. However,
illustration (b) to Section 114, which lays down a rule of practice, says
that the court ‘may’ presume that an accomplice is [pic]unworthy of credit,
unless he is corroborated in material particulars. Thus under Section 133,
which lays down a rule of law, an accomplice is a competent witness and a
conviction based solely on his uncorroborated evidence is not illegal
although in view of Section 114, illustration (b), courts do not as a
matter of practice do so and look for corroboration in material
particulars. This is the conjoint effect of Sections 133 and 114,
illustration (b).
16. A prosecutrix of a sex offence cannot be put on 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. We have, therefore, no doubt
in our minds that ordinarily the evidence of a prosecutrix who does not
lack understanding must be accepted. The degree of proof required must not
be higher than is expected of an injured witness. For the above reasons we
think that exception has rightly been taken to the approach of the High
Court as is reflected in the following passage:
“It is only in the rarest of rare cases if the court finds that the
testimony of the prosecutrix is so trustworthy, truthful and reliable that
other corroboration may not be necessary.”
With respect, the law is not correctly stated. If we may say so, it is just
the reverse. Ordinarily the evidence of a prosecutrix must carry the same
weight as is attached to an injured person who is a victim of violence,
unless there are special circumstances which call for greater caution, in
[pic]which case it would be safe to act on her testimony if there is
independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex
violation cases in the recent past, particularly cases of molestation and
rape in custody, to remove the notion, if it persists, that the testimony
of a woman who is a victim of sexual violence must ordinarily be
corroborated in material particulars except in the rarest of rare cases. To
insist on corroboration except in the rarest of rare cases is to equate a
woman who is a victim of the lust of another with an accomplice to a crime
and thereby insult womanhood. It would be adding insult to injury to tell a
woman that her story of woe will not be believed unless it is corroborated
in material particulars as in the case of an accomplice to a crime. Ours is
a conservative society where it concerns sexual behaviour. Ours is not a
permissive society as in some of the western and European countries. Our
standard of decency and morality in public life is not the same as in those
countries. It is, however, unfortunate that respect for womanhood in our
country is on the decline and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer indignities in different
forms, from lewd remarks to eve-teasing, from molestation to rape. Decency
and morality in public life can be promoted and protected only if we deal
strictly with those who violate the societal norms. The standard of proof
to be expected by the court in such cases must take into account the fact
that such crimes are generally committed on the sly and very rarely direct
evidence of a person other than the prosecutrix is available. Courts must
also realise that ordinarily a woman, more so a young girl, will not stake
her reputation by levelling a false charge concerning her chastity.”
Similar observations were made in State of Punjab vs. Gurmit Singh[3], 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. [pic]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 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
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 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.”
7. Thus, while absence of injuries or absence of raising alarm or delay
in FIR may not by itself be enough to disbelieve the version of prosecutrix
in view of the statutory presumption under Section 114A of the Evidence Act
but if such statement has inherent infirmities, creating doubt about its
veracity, the same may not be acted upon. We are conscious of the
sensitivity with which heinous offence under Section 376, IPC has to be
treated but in the present case the circumstances taken as a whole create
doubt about the correctness of the prosecution version. We are, thus, of
the opinion that a case is made out for giving benefit of doubt to the
accused.
8. Accordingly, we allow this appeal, set aside the conviction of the
appellant and acquit him of the charge.
…………………………….J.
[ V. GOPALA GOWDA ]
………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
September 16, 2014
ITEM NO.1C-For Judgment COURT NO.14 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2358/2010
MUNNA Appellant(s)
VERSUS
STATE OF M.P. Respondent(s)
Date : 16/09/2014 This appeal was called on for JUDGMENT today.
For Appellant(s) Mr. C.D. Singh, Adv.
Ms. Sakshi Kakkar, Adv.
Ms. Pragati Neekhra, Adv.
For Respondent(s)
Mr. Mishra Saurabh,Adv.
Ms. Vanshaja Shukla, Adv.
Mr. Ankit Kr.Lal, Adv.
Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice V.Gopala Gowda and His
Lordship.
The appeal is allowed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
-----------------------
[1] (1983) 3 SCC 217
[2] (1990) 1 SCC 550
[3] (1996) 2 SCC 384
against the conviction and sentence of
the appellant for offences under Sections 450 and 376 of the Indian Penal
Code (IPC) for which the appellant stands sentenced to undergo rigorous
imprisonment for seven years under both heads but the sentences are to run
concurrently, apart from being sentenced to pay fine.=
as per FIR is that on 19th April, 1993, when
the prosecutrix (PW 1) was sleeping in her house at 1.00 A.M., the
appellant along with co-accused Sahab Singh @ Mutta entered the house of
the prosecutrix and both of them committed rape on the prosecutrix and then
fled away.
They were carrying knife which was shown to the prosecutrix to
threaten her if she raised alarm.
The prosecutrix narrated the incident to
her husband and lodged First Information Report at the Police Station on
the next day. After investigation both the accused were sent up for trial.
The prosecutrix did not support the version against co-accused Sahab Singh
@ Mutta. Accordingly, he was acquitted by the trial Court.
Relying upon
her version supported by her husband Balkishan (PW 2)
and Kotwar of the village Manaklal (PW 3), the trial Court convicted and
sentenced the appellant which has been confirmed by the High Court. =
The
discrepancies pointed out are as follows :
(i) Though initially, two persons were named and it was alleged that both
threatened the prosecutrix with a knife, version at the trial was
different and only the appellant has been named.
(ii) The prosecutrix gave affidavit dated 23th April, 1993 three days
after the lodging of the FIR, disowning the version and exonerating the
appellant. The said affidavit was duly acted upon by the trial Court, as
the prosecutrix appeared in Court and supported the contents of the
affidavit, for granting the accused anticipatory bail vide Order dated 29th
April, 1993. The order of anticipatory bail reads as under:
“Affidavit of the complainant perused. According to which Village Patel
Shiv Kumar had put pressure upon the complainant and got a false report
registered. Additional Public Prosecutor has not objected the bail
application.
Bail of accused Mutta is already granted on this ground hence this accused
is also being granted benefit of bail and it is ordered that if in this
case applicant is arrested then he should be released on bail bond of
Rs.5,000/- and surety.”
(iii) PW 3 has admitted that husband of the prosecutrix had enmity with the
appellant. The medical report inter alia read as follows :
“………..No signs of injury anywhere………. One cream color petticoat on which
there no stains of looking like Semenal stains present……..”
(iv) The statement of the prosecutrix has also contradictions, as at one
place she states that she had seen the accused only when he was escaping
and not before, while at the other place she gave a different statement.
Similarly her husband PW 2 has contradicted the prosecutrix about the
presence of the accused when PW 2 arrived. According to
PW 2, accused was still at the house and ran away only when he opened the
door while according to prosecutrix the accused had ran away before arrival
of her husband.
5. We find that the above discrepancies are supported by the record.=
Thus, while absence of injuries or absence of raising alarm or delay
in FIR may not by itself be enough to disbelieve the version of prosecutrix
in view of the statutory presumption under Section 114A of the Evidence Act
but if such statement has inherent infirmities, creating doubt about its
veracity, the same may not be acted upon.
We are conscious of the
sensitivity with which heinous offence under Section 376, IPC has to be
treated but in the present case the circumstances taken as a whole create
doubt about the correctness of the prosecution version.
We are, thus, of
the opinion that a case is made out for giving benefit of doubt to the
accused.
8. Accordingly, we allow this appeal, set aside the conviction of the
appellant and acquit him of the charge.
2014- Sept. Month - http://judis.nic.in/supremecourt/filename=41926
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2358 of 2010
MUNNA ... APPELLANT
VERSUS
STATE OF M.P. ... RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction and sentence of
the appellant for offences under Sections 450 and 376 of the Indian Penal
Code (IPC) for which the appellant stands sentenced to undergo rigorous
imprisonment for seven years under both heads but the sentences are to run
concurrently, apart from being sentenced to pay fine.
2. Case of the prosecution as per FIR is that on 19th April, 1993, when
the prosecutrix (PW 1) was sleeping in her house at 1.00 A.M., the
appellant along with co-accused Sahab Singh @ Mutta entered the house of
the prosecutrix and both of them committed rape on the prosecutrix and then
fled away. They were carrying knife which was shown to the prosecutrix to
threaten her if she raised alarm. The prosecutrix narrated the incident to
her husband and lodged First Information Report at the Police Station on
the next day. After investigation both the accused were sent up for trial.
The prosecutrix did not support the version against co-accused Sahab Singh
@ Mutta. Accordingly, he was acquitted by the trial Court. Relying upon
her version supported by her husband Balkishan (PW 2)
and Kotwar of the village Manaklal (PW 3), the trial Court convicted and
sentenced the appellant which has been confirmed by the High Court.
3. We have heard learned counsel for the parties.
4. Learned counsel for the appellant has pointed out that there are
major discrepancies in the version of the prosecution which create doubt
about the veracity of the prosecution case against the appellant. The
discrepancies pointed out are as follows :
(i) Though initially, two persons were named and it was alleged that both
threatened the prosecutrix with a knife, version at the trial was
different and only the appellant has been named.
(ii) The prosecutrix gave affidavit dated 23th April, 1993 three days
after the lodging of the FIR, disowning the version and exonerating the
appellant. The said affidavit was duly acted upon by the trial Court, as
the prosecutrix appeared in Court and supported the contents of the
affidavit, for granting the accused anticipatory bail vide Order dated 29th
April, 1993. The order of anticipatory bail reads as under:
“Affidavit of the complainant perused. According to which Village Patel
Shiv Kumar had put pressure upon the complainant and got a false report
registered. Additional Public Prosecutor has not objected the bail
application.
Bail of accused Mutta is already granted on this ground hence this accused
is also being granted benefit of bail and it is ordered that if in this
case applicant is arrested then he should be released on bail bond of
Rs.5,000/- and surety.”
(iii) PW 3 has admitted that husband of the prosecutrix had enmity with the
appellant. The medical report inter alia read as follows :
“………..No signs of injury anywhere………. One cream color petticoat on which
there no stains of looking like Semenal stains present……..”
(iv) The statement of the prosecutrix has also contradictions, as at one
place she states that she had seen the accused only when he was escaping
and not before, while at the other place she gave a different statement.
Similarly her husband PW 2 has contradicted the prosecutrix about the
presence of the accused when PW 2 arrived. According to
PW 2, accused was still at the house and ran away only when he opened the
door while according to prosecutrix the accused had ran away before arrival
of her husband.
5. We find that the above discrepancies are supported by the record.
6. We are conscious that testimony of the prosecutrix is almost at par
with an injured witness and can be acted upon without corroboration as held
in various decisions of this Court. Reference may be made to some of the
leading judgments.
In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat.[1], this Court held
as under :
“9. 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 the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion? To do so is to
justify the charge of male chauvinism in a male dominated society. We must
analyze the argument in support of the need for corroboration and subject
it to relentless and remorseless cross-examination. And we must do so with
a logical, and not an opinionated, eye in the light of probabilities with
our feet firmly planted on the soil of India and with our eyes focussed on
the Indian horizon. We must not be swept off the feet by the approach made
in the western world which has its own social milieu, its own social mores,
its own permissive values, and its own code of life. Corroboration may be
considered essential to establish a sexual offence in the backdrop of the
social ecology of the western world. It is wholly unnecessary to import the
said concept on a turnkey basis and to transplant it on the Indian soil
regardless of the altogether different atmosphere, attitudes, mores,
responses of the Indian society, and its profile. The identities of the two
worlds are different. The solution of problems cannot therefore be
identical.
10. Without the fear of making too wide a statement, or of overstating the
case, it can be said that rarely will a girl or a woman in India make false
allegations of sexual assault …….. 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, not so sophisticated, and unsophisticated
society. Only very rarely can one conceivably come across an exception or
two and that too possibly from amongst the urban elites. Because (1) A girl
or a woman in the tradition-bound non-permissive society of India would be
extremely reluctant even to admit that any incident which is likely to
reflect on her chastity had ever occurred. (2) She would be conscious of
the danger of being ostracized by the society or being looked down by the
society including by her own family members, relatives, friends, and
neighbours. (3) She would have to brave the whole world. (4) She would face
the risk of losing the love and respect of her own husband and near
relatives, and of her matrimonial home and happiness being shattered. (5)
If she is unmarried, she would apprehend that it would be difficult to
secure an alliance with a [pic]suitable match from a respectable or an
acceptable family. (6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself. (7) The fear of being
taunted by others will always haunt her. (8) She would feel extremely
embarassed in relating the incident to others being overpowered by a
feeling of shame on account of the upbringing in a tradition-bound society
where by and large sex is taboo. (9) The natural inclination would be to
avoid giving publicity to the incident lest the family name and family
honour is brought into controversy. (10) The parents of an unmarried girl
as also the husband and members of the husband’s family of a married woman,
would also more often than not, want to avoid publicity on account of the
fear of social stigma on the family name and family honour. (11) The fear
of the victim herself being considered to be promiscuous or in some way
responsible for the incident regardless of her innocence. (12) The
reluctance to face interrogation by the investigating agency, to face the
court, to face the cross-examination by counsel for the culprit, and the
risk of being disbelieved, acts as a deterrent.”
In State of Maharashtra vs. Chandraprakash Kewalchand Jain[2], this Court
held as under :
“15. It is necessary at the outset to state what the approach of the court
should be while evaluating the prosecution evidence, particularly the
evidence of the prosecutrix, in sex offences. Is it essential that the
evidence of the prosecutrix should be corroborated in material particulars
before the court bases a conviction on her testimony ? Does the rule of
prudence demand that in all cases save the rarest of rare the court should
look for corroboration before acting on the evidence of the prosecutrix ?
Let us see if the Evidence Act provides the clue. Under the said statute
‘Evidence’ means and includes all statements which the court permits or
requires to be made before it by witnesses, in relation to the matters of
fact under inquiry. Under Section 59 all facts, except the contents of
documents, may be proved by oral evidence. Section 118 then tells us who
may give oral evidence. According to that section all persons are competent
to testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to
those questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind. Even in the case of an
accomplice Section 133 provides that he shall be a competent witness
against an accused person; and a conviction is not illegal merely because
it proceeds upon the uncorroborated testimony of an accomplice. However,
illustration (b) to Section 114, which lays down a rule of practice, says
that the court ‘may’ presume that an accomplice is [pic]unworthy of credit,
unless he is corroborated in material particulars. Thus under Section 133,
which lays down a rule of law, an accomplice is a competent witness and a
conviction based solely on his uncorroborated evidence is not illegal
although in view of Section 114, illustration (b), courts do not as a
matter of practice do so and look for corroboration in material
particulars. This is the conjoint effect of Sections 133 and 114,
illustration (b).
16. A prosecutrix of a sex offence cannot be put on 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. We have, therefore, no doubt
in our minds that ordinarily the evidence of a prosecutrix who does not
lack understanding must be accepted. The degree of proof required must not
be higher than is expected of an injured witness. For the above reasons we
think that exception has rightly been taken to the approach of the High
Court as is reflected in the following passage:
“It is only in the rarest of rare cases if the court finds that the
testimony of the prosecutrix is so trustworthy, truthful and reliable that
other corroboration may not be necessary.”
With respect, the law is not correctly stated. If we may say so, it is just
the reverse. Ordinarily the evidence of a prosecutrix must carry the same
weight as is attached to an injured person who is a victim of violence,
unless there are special circumstances which call for greater caution, in
[pic]which case it would be safe to act on her testimony if there is
independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex
violation cases in the recent past, particularly cases of molestation and
rape in custody, to remove the notion, if it persists, that the testimony
of a woman who is a victim of sexual violence must ordinarily be
corroborated in material particulars except in the rarest of rare cases. To
insist on corroboration except in the rarest of rare cases is to equate a
woman who is a victim of the lust of another with an accomplice to a crime
and thereby insult womanhood. It would be adding insult to injury to tell a
woman that her story of woe will not be believed unless it is corroborated
in material particulars as in the case of an accomplice to a crime. Ours is
a conservative society where it concerns sexual behaviour. Ours is not a
permissive society as in some of the western and European countries. Our
standard of decency and morality in public life is not the same as in those
countries. It is, however, unfortunate that respect for womanhood in our
country is on the decline and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer indignities in different
forms, from lewd remarks to eve-teasing, from molestation to rape. Decency
and morality in public life can be promoted and protected only if we deal
strictly with those who violate the societal norms. The standard of proof
to be expected by the court in such cases must take into account the fact
that such crimes are generally committed on the sly and very rarely direct
evidence of a person other than the prosecutrix is available. Courts must
also realise that ordinarily a woman, more so a young girl, will not stake
her reputation by levelling a false charge concerning her chastity.”
Similar observations were made in State of Punjab vs. Gurmit Singh[3], 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. [pic]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 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
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 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.”
7. Thus, while absence of injuries or absence of raising alarm or delay
in FIR may not by itself be enough to disbelieve the version of prosecutrix
in view of the statutory presumption under Section 114A of the Evidence Act
but if such statement has inherent infirmities, creating doubt about its
veracity, the same may not be acted upon. We are conscious of the
sensitivity with which heinous offence under Section 376, IPC has to be
treated but in the present case the circumstances taken as a whole create
doubt about the correctness of the prosecution version. We are, thus, of
the opinion that a case is made out for giving benefit of doubt to the
accused.
8. Accordingly, we allow this appeal, set aside the conviction of the
appellant and acquit him of the charge.
…………………………….J.
[ V. GOPALA GOWDA ]
………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
September 16, 2014
ITEM NO.1C-For Judgment COURT NO.14 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2358/2010
MUNNA Appellant(s)
VERSUS
STATE OF M.P. Respondent(s)
Date : 16/09/2014 This appeal was called on for JUDGMENT today.
For Appellant(s) Mr. C.D. Singh, Adv.
Ms. Sakshi Kakkar, Adv.
Ms. Pragati Neekhra, Adv.
For Respondent(s)
Mr. Mishra Saurabh,Adv.
Ms. Vanshaja Shukla, Adv.
Mr. Ankit Kr.Lal, Adv.
Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice V.Gopala Gowda and His
Lordship.
The appeal is allowed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
-----------------------
[1] (1983) 3 SCC 217
[2] (1990) 1 SCC 550
[3] (1996) 2 SCC 384
