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Friday, February 27, 2015

Section 376(2) of IPC, the legislature has empowered the Court to award lesser sentence where "adequate and special reasons" exist. The incident in the present case had taken place 20 years ago. The victim (prosecutrix) and the accused have entered into a compromise stating therein that the prosecutrix does not want to proceed with the case against the accused and wants to close the case. Both of them are married (not to each other) and have settled in life. Learned counsel for the appellant contends that this is an "adequate and special reason" for awarding lesser sentence. 17. This Court has in the case of Baldev Singh & Ors. v. State of Punjab, (2011) 13 SCC 705, invoked the proviso to Section 376 (2) (g) of IPC on the consideration that the case was an old one. The facts of the above case also state that there was compromise entered into between the parties. 18. In light of the discussion in the foregoing paragraphs, we are of the opinion that the case of the appellant is a fit case for invoking the proviso to Section 376(2)(g) of IPC for awarding lesser sentence, as the incident is 20 years old and the fact that the parties are married and have entered into a compromise, are the adequate and special reasons. Therefore, although we uphold the conviction of the appellant but reduce the sentence to the period already undergone by the appellant. The appeal is disposed of accordingly.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION



                     CRIMINAL APPEAL NO. 1410  OF  2013

      Ravindra                                  ... Appellant

                                  :Versus:

      State of Madhya Pradesh                ... Respondent







                               J U D G M E N T

      Pinaki Chandra Ghose, J.

   1. This appeal by special leave arises from the judgment and order  dated
      12.3.2013 passed by the High Court of Madhya Pradesh, Bench at Indore,
      in Criminal Appeal No.1275 of 1997 whereby the High Court  has  upheld
      the sentence awarded to  the  appellant  by  the  Additional  Sessions
      Judge, Khargone, in S.T. No. 288/94. The  Trial  Court  convicted  the
      appellant under Section 376(1) of the Indian Penal  Code  ("IPC",  for
      short) and sentenced him to 10 years rigorous imprisonment with a fine
      of Rs. 2000/-, and in default of payment  of  fine,  6  months  simple
      imprisonment.



   2. The factual matix of the case is  that  on  24.8.94,  the  complainant
      Narmadabai had gone to the field of the  accused  Ravindra  for  doing
      labour work. When she was plucking Moong Beans at about 12  O'  clock,
      accused Ravindra came near her, caught her hand, pushed her  down  and
      committed sexual intercourse without her  consent.  Complainant  cried
      but nobody was nearby. The Petticoat of the  complainant  was  stained
      with semen of the accused. After committing rape the accused fled away
      from the spot. The prosecutrix (PW1) came home and  she  narrated  the
      incident to her  parents.  Her  mother  called  her  maternal  uncles,
      Shankar  Singh  (PW4)  and  Pahadsingh  (PW5)  and   father   of   the
      prosecutrix. On the same day, an FIR was  lodged  by  the  prosecutrix
      (PW1) at Police Station Bhikagaon. The  complainant  and  the  accused
      were medically examined by Smt. Vandana Sarkanungo (PW3)  and  gave  a
      report.  On 1.09.1994 accused  was  arrested  vide  arrest  memo.  The
      clothes of the prosecutrix and the accused were sent to the FSL. After
      completion of the investigation, charge sheet  was  filed  before  the
      Judicial Magistrate, First Class, Bhikagaon, against the accused under
      Section 376 IPC which was registered as Criminal Case No.590/94.



   3. The findings of the lower Court, as stated in  the  impugned  judgment
      were that at the time of occurrence the prosecutrix (PW-1)  was  above
      16 years  of  age.  PW1  in  her  statement  very  categorically  made
      allegation against the present appellant that when she  was  alone  in
      the  agricultural  field  of  the  appellant/accused,  he   came   and
      forcefully caught hold of both her hands, and thereafter  removed  her
      clothes and committed rape. Dr. Smt. Vandana Sarkanungo (PW3) did  not
      find any injury on the internal and external part of  the  prosecutrix
      (PW1) and opined that prosecutrix was habitual to sexual  intercourse.
      In respect of the false implication on the appellant, it has  come  on
      record in the statement of Nand Kishore (PW2), who is  father  of  the
      prosecutrix, that a sum of Rs.500/- was taken on loan by him from  the
      appellant. But PW1 and PW2 have not deposed that due to the  aforesaid
      reason there was previous enmity between them.  The  finding  on  this
      aspect of the High Court in the impugned judgment was  that  if  there
      was any enmity, the appellant/accused could not have come to the house
      of the prosecutrix for inviting her to work in his agricultural field.
      The appellant/accused was examined by the doctor who found him capable
      of performing sexual intercourse. Semen was found in the undergarments
      of the prosecutrix, from the exhibit.




   4. After considering the evidence adduced by the parties, the High  Court
      was of the view that it is well settled that the woman who is a victim
      of sexual assault is not an accomplice  to  the  crime.  Her  evidence
      cannot be tested with suspicion as that of an accomplice. As a  matter
      of fact her  evidence  is  similar  to  the  evidence  of  an  injured
      complainant or witness. The testimony of  the  prosecutrix,  if  found
      reliable by itself may be sufficient to convict  the  culprit  and  no
      corroboration of her evidence is necessary. Secondly,  in  prosecution
      of rape, the law does not require corroboration. The evidence  of  the
      prosecutrix may sustain a conviction. It is only by  way  of  abundant
      caution that Court may look for some corroboration so  as  to  satisfy
      its conscience and rule out any  false  accusations.  Thus,  the  High
      Court was of the view that the Trial Court had not committed any error
      in convicting the appellant under Section 376 of IPC. The statement of
      the prosecutrix was reliable. Prompt FIR was  lodged  by  her  and  no
      further corroboration of her statement was required.




   5. Learned counsel for the appellant submitted that the Trial  Court  and
      the High Court ignored the contradictions in  the  statements  of  the
      prosecutrix Smt. Narmadabai  (PW1)  and  Nand  Kishore  (PW2)  on  the
      question, whether the prosecutrix was  called  in  the  field  in  the
      morning or in the afternoon or a day in advance.  The High Court  also
      committed an error in accepting the finding of the Trial Court without
      any evidence, that no injury  was  found  on  her  body  as  rape  was
      committed on the sand. Counsel submitted that except some sand on  her
      clothes, no statement was given by the prosecutrix that  the  incident
      took place on plain soil, ruling out any  possibility  of  injury.  In
      view of the medical examination of the prosecutrix, Dr.  Vandana,  who
      examined her, did not give  any  definite  opinion  about  rape  being
      committed on the prosecutrix and there were no injury on  her  private
      parts or other part of body though as per her statement the  rape  was
      committed in the field having standing crop, 5 feet  high  Jawar  crop
      and 4 feet high Moong crop.  The  prosecutrix  also  stated  that  she
      grappled in the field for 15-20 minutes, but no signs of  injury  were
      found either on the  prosecutrix  or  on  the  appellant.  Appellant's
      statement is also contradicted by the medical evidence.



   6. According to the learned counsel for the  appellant,  the  High  Court
      committed an error in placing reliance on Sheikh Zakir  vs.  State  of
      Bihar, AIR 1983 SC 911, and holding that no corroboration is  required
      for convicting the accused under Section 376, on  account  of  a  long
      line of judicial decisions which held that where a case is tried by  a
      judge alone, and is based on evidence of the prosecutrix  without  any
      corroboration, it will not be illegal on that sole ground. In case  of
      a  grown  up  and  married  woman  it  is  safe  to  insist  on   such
      corroboration. Further, it was argued by the counsel for the appellant
      that the High Court made an error by placing reliance in the  case  of
      State of U.P. v. Chhoteylal, AIR 2011 SC 697, as it was not applicable
      to the present matter.



   7. Counsel for the appellant further submitted that this was a case where
      there was a possibility of consent of the prosecutrix. The prosecutrix
      tried to show that she was less than 16 years, which is  found  to  be
      false in the present case. The medical evidence shows that  her  hymen
      was old ruptured  and  it  was  in  the  healing  stage.  The  medical
      examination report had given no definite opinion regarding  rape.  The
      statement of Dr. Vandana (PW3) also supported that view as  no  injury
      either on the person of Narmadabai or on her private parts was  found.
      Her hymen being old ruptured was in healing condition.  There  was  no
      injury on any of them even though the incident took place  in  5  feet
      Jawar crop and 4 feet Moong crop  and  they  had  grappled  for  15-20
      minutes.



   8. In view of the admitted statements of PW1 and PW2 that before  lodging
      the report, they made offer for compromise to the  appellant's  father
      and when the appellant's father did not  agree  for  compromise,  they
      lodged the FIR. Nand  Kishore  (PW2)  has  himself  admitted  that  he
      received Rs.500/- from the appellant's father some 3-4 years  ago  but
      had not returned the same till that date. Thus, a false case has  been
      fastened since a demand had been made for the return  of  the  amount.
      PW4 and PW5, who are the two maternal uncles of the  prosecutrix,  did
      not support her and they were declared hostile.



   9. Further, the learned counsel, relying on  the  Trail  Court  judgment,
      contended that the Prosecutrix has failed to establish  that  her  age
      was below 16 years and in view of the fact that there was no  sign  of
      rape or any injury, the present case,  at  the  most,  is  a  case  of
      consent.



  10. Learned counsel appearing for the State, on the other hand, has relied
      on the fact of presence of semen on the Petticoat of the  prosecutrix.
      It is submitted that the  Chemical  Examiner  report  found  that  the
      sample of semen found on the garments was not sufficient to  link  the
      same with the accused.



  11. Now, we shall examine whether this case falls under proviso to Section
      376 IPC, to award a lesser sentence for "adequate and special reason".
      In the present case, the incident took place 20 years ago and now with
      passage of time both victim and  accused  are  married  (not  to  each
      other) and they have entered into a compromise. Thus, an adequate  and
      special reason for awarding a  lesser  sentence  exists  in  terms  of
      proviso to Section 376.



  12. Learned Counsel for the appellant has taken four  primary  grounds  of
      defence. First, that there is no sign of injury on  the  body  of  the
      victim and no definite opinion of rape is given by  the  PW-3,  though
      there had been grappling for 15-20 minutes between the victim and  the
      accused. However, the victim has stated that she did not  scratch  the
      accused and that the accused caught hold of her hand and put her  down
      and committed rape in the field. From this it  can  be  inferred  that
      rape was committed on the ground  in  the  field.  But  it  is  highly
      improbable that their clothes would not tear and there  would  not  be
      any injury on the body of the victim. In Dastagir Sab & Anr. v.  State
      of Karnataka, (2004) 3 SCC  106,  it  was  held  by  this  Court  that
      presence of injury on the body of the victim is not a sine qua non  to
      prove the charge of rape. In the said  case,  the  facts  showed  that
      medical examination  was  conducted  after  a  month  of  the  alleged
      offence. The medical opinion was that abrasion or  marks  of  violence
      would be visible for twenty four hours and  thereafter  the  same  may
      disappear. In the present case, the medical examination  was  done  on
      the same day on which the alleged offence was committed, and going  by
      the medical examination report and  the  statement  of  P.W.3,  it  is
      improbable that rape was committed.



  13. The second ground taken by the defence is that  there  is  absence  of
      spermatozoa in the  vaginal  swab  of  the  victim  and  the  Chemical
      Examination report found  that  the  sample  of  semen  found  on  the
      garments of the victim was insufficient to  link  the  same  with  the
      accused. On the aspect of benefit of doubt, this Court has observed in
      Hem Raj v. State of Haryana, (2014) 2 SCC 395,  that  prosecution  had
      brought on record  FSL  report  which  showed  that  human  semen  was
      detected on the salwar of the prosecutrix and on the underwear of  the
      accused. However  it  was  difficult  to  infer  from  this  that  the
      prosecutrix was raped by the accused. The appellant in that  case  was
      given benefit of doubt.



  14. In the present case, the  Chemical  Examiner  report  found  that  the
      sample of semen was not sufficient to link the same  to  the  accused,
      notwithstanding that absence of spermatozoa on the vaginal smear could
      not be allowed to tell against the version of the prosecutrix, as held
      in Narayanamma v. State of Karnataka & Ors., (1994) 5 SCC 728.



  15. The third ground of defence taken by the accused is that there  is  no
      corroboration and there is contradiction in the  prosecution  case  on
      important aspects, though on the aspect of appreciation  of  evidence,
      being the testimony of  the  prosecutrix,  this  Court   has  held  in
      Narendra Kumar v. State (NCT of Delhi), (2012) 7 SCC 171,  that  minor
      contradictions or insignificant discrepancies in the evidence  of  the
      witnesses are not of a substantial  character.  However,  in  Sadashiv
      Ramrao Hadbe v. State of Maharashtra & Anr., (2006) 10 SCC  92,  where
      the sole testimony is unsupported by any medical evidence or the whole
      surrounding circumstances are highly improbable to belie the case  set
      up by the prosecutrix, this Court held that Court shall not act on the
      solitary evidence of the prosecutrix. Thus, in light of the above  the
      Court should not rely solely on the testimony of the prosecutrix.  The
      statement in the present case requires corroboration as it  has  minor
      contradictions and is not corroborated by other prosecution witnesses.
      The two maternal uncles  (PW-4 and PW-5) of the  prosecutrix  did  not
      support her and were declared hostile.



  16. The fourth ground of defence taken by  the  appellant  is  that  under
      proviso to Section 376(2) of IPC, the legislature  has  empowered  the
      Court to award lesser sentence where "adequate  and  special  reasons"
      exist. The incident in the present case had taken place 20 years  ago.
      The  victim  (prosecutrix)  and  the  accused  have  entered  into   a
      compromise stating therein that  the  prosecutrix  does  not  want  to
      proceed with the case against the accused and wants to close the case.
      Both of them are married (not to each other) and have settled in life.
      Learned counsel for the appellant contends that this is  an  "adequate
      and special reason" for awarding lesser sentence.



  17. This Court has in the case of Baldev Singh & Ors. v. State of  Punjab,
      (2011) 13 SCC 705, invoked the proviso to Section 376 (2) (g)  of  IPC
      on the consideration that the case was an old one. The  facts  of  the
      above case also state that there was compromise entered  into  between
      the parties.



  18. In light of the discussion in the foregoing paragraphs, we are of  the
      opinion that the case of the appellant is a fit case for invoking  the
      proviso to Section 376(2)(g) of IPC for awarding lesser  sentence,  as
      the incident is 20 years old and the fact that the parties are married
      and have entered into a  compromise,  are  the  adequate  and  special
      reasons. Therefore, although we uphold the conviction of the appellant
      but reduce the  sentence  to  the  period  already  undergone  by  the
      appellant. The appeal is disposed of accordingly.






                                       .......................................
                                       ..J

                                                         (M.Y. EQBAL)




                                       .......................................
                                       ..J

                                                         (PINAKI CHANDRA
   GHOSE)

   New Delhi;


   February 26, 2015.

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