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Wednesday, October 1, 2014

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.=CRIMINAL APPEAL NO.2358 of 2010 MUNNA ... APPELLANT VERSUS STATE OF M.P. ... RESPONDENT = 2014- Sept. Month - http://judis.nic.in/supremecourt/filename=41926

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

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