PUBLISHED IN http://judis.nic.in/supremecourt/imgs1.aspx?filename=40522
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1118 of 2004
Ganga Singh …… Appellant
Versus
State of Madhya Pradesh …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article
136 of the Constitution against the judgment dated
26.06.2003 of the Madhya Pradesh High Court, Gwalior
Bench, in Criminal Appeal No.92 of 1990.
2. The facts very briefly are that the informant lodged
an oral complaint on 22.12.1987 at 6.00 P.M. at Mangraoul
Police Station, alleging that on 21.12.1987 at 6.30 P.M. in the
evening when she had gone to the field of Tilak Singh at
Page 2
Naya Kunwa to answer her natural call and was coming out
from the field, the appellant came and caught hold of her
and fell her down, gagged her mouth, lifted her petticoat and
committed rape.
She returned home and told her mother-inlaw about the incident and
on 22.12.1987 when her
husband, who works on a truck, returned home, she has
come to lodge the report in the police station. The police
registered the complaint as an FIR, got the informant
medically examined at 7.15 P.M. on the same day.
Dr. (Mrs.)
Kusumlata of Government Hospital, Seondha, opined that as
the informant is a married lady and was habitual to
intercourse, no definite opinion could be given on whether
she was subjected to any sexual intercourse.
The petticoat
and vaginal smear slides (which were prepared and sealed)
were sent for further examination.
The police then
undertook the investigation, went to the place of occurrence
on 23.12.1987 and seized a blouse and a dhoti and got
prepared the map of the site of occurrence and after
recording statements of witnesses and completing the
investigation, submitted a charge-sheet against the
2
appellant under Section 376 of Indian Penal Code (for short
‘IPC’).
3. The appellant denied the charge and Session Trial
No.9/1988 was conducted by the Sessions Judge, Datia. At
the trial, the informant was examined as PW-5, who stood by
her story in her complaint, the seizure witness was examined
as PW-1, the mother-in-law was examined as PW-2, Dr.
Kusumlata was examined as PW-9 and the Investigating
Officer was examined as PW-10.
The Sessions Judge, after
considering the evidence on record held that
as PW-5 did not obstruct or resist the appellant from doing the indecent act and no injury was caused on her person, PW-5 appears to have given her consent for the sexual intercourse and
acquitted the appellant of the offence under Section 376,
IPC, by judgment dated 30.11.1988.
4. The judgment of the Sessions Judge was challenged
before the High Court by the State of Madhya Pradesh in
Criminal Appeal No.92 of 1990. The High Court held in the
impugned judgment that PW-5 has categorically deposed
3Page 4
that the appellant had committed rape against her consent
and she had also deposed that she had informed her
mother-in-law after returning home and this fact has been
corroborated by her mother-in-law (PW-2) and, therefore,
there was no reason to disbelieve the testimony of PW-5.
The High Court further held that merely because there were
some discrepancies in the deposition of PW-5, her testimony
cannot be treated as doubtful.
The High Court concluded
that the finding of acquittal recorded by the trial court was
totally perverse and contrary to the evidence on record and
set aside the judgment of acquittal and convicted the
appellant under Section 376, IPC, and sentenced him to
seven years rigorous imprisonment, which was the minimum
sentence for the offence of rape under Section 376, IPC.
5. At the hearing, Mr. Ravi Prakash Mehrotra, learned
Amicus Curiae appearing for the appellant, submitted that
this Court has held
in Narender Kumar v. State (NCT of
Delhi) [(2012) 7 SCC 171]
that the prosecution has to prove
its own case beyond reasonable doubt and cannot take
support from the weakness of the case of defence and hence
4Page 5
there must be proper legal evidence to record the conviction
of the accused.
He also cited Rai Sandeep alias Deepu v.
State (NCT of Delhi) [(2012) 8 SCC 21]
in which the qualities
of a ‘sterling witness’ have been described and it has been
held that the evidence of only a ‘sterling witness’ can be
accepted by the Court without any corroboration. He
submitted that in this case this Court further held that the
version of such a ‘sterling witness’ on the core spectrum of
the crime should remain intact in order to enable the Court
trying the offence to rely on such core version.
6. Mr. Mehrotra submitted that PW-5 was not such a
‘sterling witness’ and her version that the appellant
committed rape on her cannot be believed. He submitted
that PW-5 has falsely implicated the appellant in the offence
of rape on account of enmity between the appellant and the
husband of PW-5.
He contended that the Doctor (PW-9) in
her evidence as well as the medical examination report
(Ext.P-8) are clear that there were no external injuries on the
person of PW-5.
He submitted that PW-1, the seizure
witness, has clearly proved the seizure of bangles, dhoti and
a blouse from the field of Tilak Singh where the occurrence
was alleged to have been taken place and these articles
were seized in presence of PW-5 and yet PW-5 has omitted
to mention about the seizure of these articles from the place
of occurrence in her evidence.
He finally submitted that the
FIR (Ext.P-9) was scribed by V.S. Rathod of the Police Chowki
and not by PW-10, the Investigating Officer. He argued that
in fact PW-10 went on leave from 23.12.1987 and made a
shoddy and defective investigation and hastily submitted a
charge-sheet against the appellant. He submitted that there
was, therefore, reasonable doubt in the prosecution case
and the appellant was entitled to be acquitted because of
such doubt.
7. Mr. Siddhartha Dave, learned counsel appearing for
the State of Madhya Pradesh, submitted that the testimony
of PW-5 that the appellant forcibly committed rape on her by
felling her on the ground is corroborated by PW-2 before
whom she made a statement soon after the incident as well
as by the FIR (Ext. P-9) lodged by her to PW-10 one day after
the incident. This is, therefore, not a case where the finding
6Page 7
of guilt against the appellant recorded by the High Court is
on the sole testimony of PW-5 as argued by Mr. Mehrotra.
He cited Karnel Singh v. State of M.P. [(1995) 5 SCC 518] for
the proposition that the prosecutrix of a sex offence cannot
be put on par with an accomplice whose evidence needs to
be corroborated in material particulars.
He submitted that
the nature of evidence of the prosecutrix is such that no
corroboration is necessary and if the testimony of the
prosecutrix is trustworthy and totality of the circumstances
appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely
implicate the person charged, the Court should ordinarily
have no hesitation in accepting her evidence. He submitted
that applying the aforesaid test to the evidence of PW-5 and
considering all other circumstances in this case, the High
Court was right in recording the conviction against the
appellant.
8. In reply to the submission of Mr. Mehrotra that the
medical evidence of PW-9 as well as the medical
examination report (Ext.P-8) did not disclose any injuries on
7Page 8
the person of PW-5, Mr. Dave cited the decision of this Court
in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]
in which even though there was no medical evidence to
corroborate the testimony of the prosecutrix, this Court held
that such corroboration was not necessary where the
evidence of the prosecutrix was otherwise consistent and
stood corroborated by other circumstances and the FIR. In
reply to the contention of Mr. Mehrotra that the appellant
has been falsely implicated on account of enmity between
the husband of PW-5 and the appellant, he submitted that
PW-2 has very fairly stated in her evidence that there was
enmity between the two and yet has stated that the
complaint against the appellant has not been falsely made.
He submitted that a very strong circumstance against the
appellant is that after the incident on 21.12.1987 the
appellant absconded and he was arrested by the police after
ten days on 31.12.1987.
9. Mr. Dave submitted that the trial court has not
appreciated the meaning of the word ‘consent’ used in the
definition of ‘rape’ in Section 375, IPC. He cited State of
Uttar Pradesh v. Chhotey Lal [(2011) 2 SCC 550] for the
proposition that consent for the purpose of Section 375, IPC,
requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and
moral quality of the act as also after full exercise of the
choice between resistance and assent. He submitted that
the evidence of PW-5 clearly establishes that there was no
voluntary participation in the sexual intercourse by PW-5,
and on the contrary, PW-5 could not physically resist the
sexual intercourse forced on her by the appellant. He
submitted that the High Court therefore rightly held the
appellant guilty of the offence of rape and the finding of guilt
recorded by the High Court against the appellant should not
be disturbed by this Court in this appeal.
Findings of the Court
10. Mr. Mehrotra is right in his submission that burden is on
the prosecution to prove beyond reasonable doubt that the
appellant is guilty of the offence under Section 376, IPC and
this burden has to be discharged by adducing reliable
9Page 10
evidence in proof of the guilt of the appellant. In the present
case, the prosecution seeks to establish the guilt of the
appellant through the evidence of PW-5, the prosecutrix.
Law is well-settled that the prosecutrix is a victim of, and not
an accomplice in, a sex offence and there is no provision in
the Indian Evidence Act requiring corroboration in material
particulars of the evidence of the prosecutrix as is in the
case of evidence of accomplice. He submitted that the
prosecutrix is thus a competent witness under Section 118 of
the Indian Evidence Act and her evidence must receive the
same weight as is attached to an injured witness in cases of
physical violence
[see State of Maharashtra vs.
Chandrapraksh Kewalchand Jain (1990) 1 SCC 550]. Keeping
this principle in mind, when we look at the evidence of PW-5,
we find that she has categorically stated that the appellant
fell her down, covered her mouth with one hand and
restricted her hands with other hand and lifted her petticoat
and committed rape on her. It is true that on her medical
examination the next day, PW-9 did not find any injury on
the person of PW-5, but PW-5 has explained that she fell on
10Page 11
her back in the agricultural field which had a smooth surface
and there were wheat and mustard crops in the field and this
could be reason for her not suffering injury.
11. According to Mr. Mehrotra, however, PW-5 is not a
reliable witness as she has made a significant omission in
her evidence by not stating anything about the seizure of the
blouse, dhoti and broken bangles which were made in her
presence. But we find that no question has been put to PW-
5 in cross-examination with regard to seizure of the blouse,
dhoti and broken bangles in her presence. If the appellant’s
case was that PW-5 cannot be believed because she made
this significant omission in her evidence, a question in this
regard should have been put to her during her crossexamination.
To quote Lord Herschell, LC in Browne vs.
Dunn [(1894) 6 R 67]:
“……it seems to me to be absolutely
essential to the proper conduct of a
cause, where it is intended to suggest
that a witness is not speaking the truth
on a particular point, to direct his
attention to the fact by some questions
put in cross examination showing that
the imputation is intended to be made,
and not to take his evidence and pass it
by as a matter altogether unchallenged,
and then, when it is impossible for him
to explain, as perhaps he might have
been able to do if such questions had
been put to him, the circumstances
which it is suggested indicate that the
story he tells ought not to be believed,
to argue that he is a witness unworthy
of credit.”
Section 146 of the Indian Evidence Act also provides that
when a witness is cross-examined, he may be asked any
question which tend to test his veracity. Yet no question was
put to PW-5 in cross-examination on the articles seized in
her presence. In the absence of any question with regard to
the seizure of the blouse, dhoti and broken bangles in
presence of PW-5, omission of this fact from her evidence is
no ground to doubt the veracity of her evidence.
12. The evidence of PW-5, in this case, is also corroborated
by other evidence. Section 157 of the Indian Evidence Act
provides that in order to corroborate the testimony of a
witness, any former statement made by such witness
relating to the same fact at or about the time when the fact
took place, or before any authority legally competent to
12Page 13
investigate the fact may be proved. The evidence of PW-5 is
corroborated by the evidence of her mother-in-law (PW-2)
before whom she stated about the commission of the rape
by the appellant soon after the incident the very same
evening. The evidence of PW-5 is also corroborated by the
FIR (Ex.9) before the Investigating Officer, PW-10, before
whom she lodged the complaint one day after the incident.
13. Further, though the medical evidence of PW-9 and the
medical examination report Ex. P-8 do not give any definite
opinion on whether or not PW-5 suffered any sexual
intercourse, soon after the medical examination on
22.12.1987, the petticoat and vaginal smear slides (which
were prepared and sealed) were sent for further examination
and the report of State Forensic Science Laboratory (Ex. P-
15) confirms spots of semen and spermatozoa. This
evidence confirms that PW-5 had been subjected to sexual
intercourse some time before she lodged the complaint in
the police station on 22.12.1987. Hence, the forensic
evidence is not entirely in conflict with the evidence of PW-5
so as to belie her story that she was raped by the appellant.
13Page 14
14. We further find that the appellant has not taken a
defence in his statement under Section 313 of the Criminal
Procedure Code that the sexual intercourse was with the
consent of PW-5. Instead, he has denied having had any
sexual intercourse with PW-5 and has taken a stand that he
has been falsely implicated on account of a quarrel between
him and the husband of PW-5.
Yet, the trial court held that
there was proof of sexual intercourse between the appellant
and PW-5, but the sexual intercourse was with the consent of
PW-5.
We are of the considered opinion that as the
appellant had not taken any defence of consent of PW-5, the
trial court was not correct in recording the finding that there
was consent of PW-5 to the sexual intercourse committed by
the appellant and
should have instead considered the
defence of the appellant that he had been falsely implicated
because of a quarrel between him and the husband of PW-5.
We have, however, considered this defence of the appellant
but find that except making a suggestion to PW-2, the
appellant has not produced any evidence in support of this
defence.
As PW-2 has denied the suggestion, we cannot
14Page 15
accept the defence of the appellant that he was falsely
implicated on account of a quarrel between the appellant
and the husband of PW-5.
15. We are also unable to accept the submission of Mr.
Mehrotra that the investigation by the police is shoddy and
hasty and there are defects in the investigation and
therefore benefit of doubt should be given to the appellant
and he should be acquitted of the charge of rape.
The
settled position of law is that the prosecution is required to
establish the guilt of the accused beyond reasonable doubt
by adducing evidence.
Hence, if the prosecution in a given
case adduces evidence to establish the guilt of the accused
beyond reasonable doubt, the court cannot acquit the
accused on the ground that there are some defects in the
investigation, but if the defects in the investigation are such
as to cast a reasonable doubt in the prosecution case, then
of course the accused is entitled to acquittal because of such
doubt.
In the present case, as we have seen, the evidence
of PW-5 as corroborated by the evidence of PW-2 and the FIR
establish beyond reasonable doubt that the appellant has
committed rape on PW-5 and thus the appellant is not
entitled to acquittal.
16. In the result, we are not inclined to interfere with the
finding of the guilt recorded by the High Court against the
appellant as well as the minimum sentence of 7 years
imprisonment for the offence under Section 376 IPC imposed
by the High Court. The appeal is accordingly dismissed.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
July 04, 2013.
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1118 of 2004
Ganga Singh …… Appellant
Versus
State of Madhya Pradesh …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article
136 of the Constitution against the judgment dated
26.06.2003 of the Madhya Pradesh High Court, Gwalior
Bench, in Criminal Appeal No.92 of 1990.
2. The facts very briefly are that the informant lodged
an oral complaint on 22.12.1987 at 6.00 P.M. at Mangraoul
Police Station, alleging that on 21.12.1987 at 6.30 P.M. in the
evening when she had gone to the field of Tilak Singh at
Page 2
Naya Kunwa to answer her natural call and was coming out
from the field, the appellant came and caught hold of her
and fell her down, gagged her mouth, lifted her petticoat and
committed rape.
She returned home and told her mother-inlaw about the incident and
on 22.12.1987 when her
husband, who works on a truck, returned home, she has
come to lodge the report in the police station. The police
registered the complaint as an FIR, got the informant
medically examined at 7.15 P.M. on the same day.
Dr. (Mrs.)
Kusumlata of Government Hospital, Seondha, opined that as
the informant is a married lady and was habitual to
intercourse, no definite opinion could be given on whether
she was subjected to any sexual intercourse.
The petticoat
and vaginal smear slides (which were prepared and sealed)
were sent for further examination.
The police then
undertook the investigation, went to the place of occurrence
on 23.12.1987 and seized a blouse and a dhoti and got
prepared the map of the site of occurrence and after
recording statements of witnesses and completing the
investigation, submitted a charge-sheet against the
2
appellant under Section 376 of Indian Penal Code (for short
‘IPC’).
3. The appellant denied the charge and Session Trial
No.9/1988 was conducted by the Sessions Judge, Datia. At
the trial, the informant was examined as PW-5, who stood by
her story in her complaint, the seizure witness was examined
as PW-1, the mother-in-law was examined as PW-2, Dr.
Kusumlata was examined as PW-9 and the Investigating
Officer was examined as PW-10.
The Sessions Judge, after
considering the evidence on record held that
as PW-5 did not obstruct or resist the appellant from doing the indecent act and no injury was caused on her person, PW-5 appears to have given her consent for the sexual intercourse and
acquitted the appellant of the offence under Section 376,
IPC, by judgment dated 30.11.1988.
4. The judgment of the Sessions Judge was challenged
before the High Court by the State of Madhya Pradesh in
Criminal Appeal No.92 of 1990. The High Court held in the
impugned judgment that PW-5 has categorically deposed
3Page 4
that the appellant had committed rape against her consent
and she had also deposed that she had informed her
mother-in-law after returning home and this fact has been
corroborated by her mother-in-law (PW-2) and, therefore,
there was no reason to disbelieve the testimony of PW-5.
The High Court further held that merely because there were
some discrepancies in the deposition of PW-5, her testimony
cannot be treated as doubtful.
The High Court concluded
that the finding of acquittal recorded by the trial court was
totally perverse and contrary to the evidence on record and
set aside the judgment of acquittal and convicted the
appellant under Section 376, IPC, and sentenced him to
seven years rigorous imprisonment, which was the minimum
sentence for the offence of rape under Section 376, IPC.
5. At the hearing, Mr. Ravi Prakash Mehrotra, learned
Amicus Curiae appearing for the appellant, submitted that
this Court has held
in Narender Kumar v. State (NCT of
Delhi) [(2012) 7 SCC 171]
that the prosecution has to prove
its own case beyond reasonable doubt and cannot take
support from the weakness of the case of defence and hence
4Page 5
there must be proper legal evidence to record the conviction
of the accused.
He also cited Rai Sandeep alias Deepu v.
State (NCT of Delhi) [(2012) 8 SCC 21]
in which the qualities
of a ‘sterling witness’ have been described and it has been
held that the evidence of only a ‘sterling witness’ can be
accepted by the Court without any corroboration. He
submitted that in this case this Court further held that the
version of such a ‘sterling witness’ on the core spectrum of
the crime should remain intact in order to enable the Court
trying the offence to rely on such core version.
6. Mr. Mehrotra submitted that PW-5 was not such a
‘sterling witness’ and her version that the appellant
committed rape on her cannot be believed. He submitted
that PW-5 has falsely implicated the appellant in the offence
of rape on account of enmity between the appellant and the
husband of PW-5.
He contended that the Doctor (PW-9) in
her evidence as well as the medical examination report
(Ext.P-8) are clear that there were no external injuries on the
person of PW-5.
He submitted that PW-1, the seizure
witness, has clearly proved the seizure of bangles, dhoti and
a blouse from the field of Tilak Singh where the occurrence
was alleged to have been taken place and these articles
were seized in presence of PW-5 and yet PW-5 has omitted
to mention about the seizure of these articles from the place
of occurrence in her evidence.
He finally submitted that the
FIR (Ext.P-9) was scribed by V.S. Rathod of the Police Chowki
and not by PW-10, the Investigating Officer. He argued that
in fact PW-10 went on leave from 23.12.1987 and made a
shoddy and defective investigation and hastily submitted a
charge-sheet against the appellant. He submitted that there
was, therefore, reasonable doubt in the prosecution case
and the appellant was entitled to be acquitted because of
such doubt.
7. Mr. Siddhartha Dave, learned counsel appearing for
the State of Madhya Pradesh, submitted that the testimony
of PW-5 that the appellant forcibly committed rape on her by
felling her on the ground is corroborated by PW-2 before
whom she made a statement soon after the incident as well
as by the FIR (Ext. P-9) lodged by her to PW-10 one day after
the incident. This is, therefore, not a case where the finding
6Page 7
of guilt against the appellant recorded by the High Court is
on the sole testimony of PW-5 as argued by Mr. Mehrotra.
He cited Karnel Singh v. State of M.P. [(1995) 5 SCC 518] for
the proposition that the prosecutrix of a sex offence cannot
be put on par with an accomplice whose evidence needs to
be corroborated in material particulars.
He submitted that
the nature of evidence of the prosecutrix is such that no
corroboration is necessary and if the testimony of the
prosecutrix is trustworthy and totality of the circumstances
appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely
implicate the person charged, the Court should ordinarily
have no hesitation in accepting her evidence. He submitted
that applying the aforesaid test to the evidence of PW-5 and
considering all other circumstances in this case, the High
Court was right in recording the conviction against the
appellant.
8. In reply to the submission of Mr. Mehrotra that the
medical evidence of PW-9 as well as the medical
examination report (Ext.P-8) did not disclose any injuries on
7Page 8
the person of PW-5, Mr. Dave cited the decision of this Court
in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]
in which even though there was no medical evidence to
corroborate the testimony of the prosecutrix, this Court held
that such corroboration was not necessary where the
evidence of the prosecutrix was otherwise consistent and
stood corroborated by other circumstances and the FIR. In
reply to the contention of Mr. Mehrotra that the appellant
has been falsely implicated on account of enmity between
the husband of PW-5 and the appellant, he submitted that
PW-2 has very fairly stated in her evidence that there was
enmity between the two and yet has stated that the
complaint against the appellant has not been falsely made.
He submitted that a very strong circumstance against the
appellant is that after the incident on 21.12.1987 the
appellant absconded and he was arrested by the police after
ten days on 31.12.1987.
9. Mr. Dave submitted that the trial court has not
appreciated the meaning of the word ‘consent’ used in the
definition of ‘rape’ in Section 375, IPC. He cited State of
Uttar Pradesh v. Chhotey Lal [(2011) 2 SCC 550] for the
proposition that consent for the purpose of Section 375, IPC,
requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and
moral quality of the act as also after full exercise of the
choice between resistance and assent. He submitted that
the evidence of PW-5 clearly establishes that there was no
voluntary participation in the sexual intercourse by PW-5,
and on the contrary, PW-5 could not physically resist the
sexual intercourse forced on her by the appellant. He
submitted that the High Court therefore rightly held the
appellant guilty of the offence of rape and the finding of guilt
recorded by the High Court against the appellant should not
be disturbed by this Court in this appeal.
Findings of the Court
10. Mr. Mehrotra is right in his submission that burden is on
the prosecution to prove beyond reasonable doubt that the
appellant is guilty of the offence under Section 376, IPC and
this burden has to be discharged by adducing reliable
9Page 10
evidence in proof of the guilt of the appellant. In the present
case, the prosecution seeks to establish the guilt of the
appellant through the evidence of PW-5, the prosecutrix.
Law is well-settled that the prosecutrix is a victim of, and not
an accomplice in, a sex offence and there is no provision in
the Indian Evidence Act requiring corroboration in material
particulars of the evidence of the prosecutrix as is in the
case of evidence of accomplice. He submitted that the
prosecutrix is thus a competent witness under Section 118 of
the Indian Evidence Act and her evidence must receive the
same weight as is attached to an injured witness in cases of
physical violence
[see State of Maharashtra vs.
Chandrapraksh Kewalchand Jain (1990) 1 SCC 550]. Keeping
this principle in mind, when we look at the evidence of PW-5,
we find that she has categorically stated that the appellant
fell her down, covered her mouth with one hand and
restricted her hands with other hand and lifted her petticoat
and committed rape on her. It is true that on her medical
examination the next day, PW-9 did not find any injury on
the person of PW-5, but PW-5 has explained that she fell on
10Page 11
her back in the agricultural field which had a smooth surface
and there were wheat and mustard crops in the field and this
could be reason for her not suffering injury.
11. According to Mr. Mehrotra, however, PW-5 is not a
reliable witness as she has made a significant omission in
her evidence by not stating anything about the seizure of the
blouse, dhoti and broken bangles which were made in her
presence. But we find that no question has been put to PW-
5 in cross-examination with regard to seizure of the blouse,
dhoti and broken bangles in her presence. If the appellant’s
case was that PW-5 cannot be believed because she made
this significant omission in her evidence, a question in this
regard should have been put to her during her crossexamination.
To quote Lord Herschell, LC in Browne vs.
Dunn [(1894) 6 R 67]:
“……it seems to me to be absolutely
essential to the proper conduct of a
cause, where it is intended to suggest
that a witness is not speaking the truth
on a particular point, to direct his
attention to the fact by some questions
put in cross examination showing that
the imputation is intended to be made,
and not to take his evidence and pass it
by as a matter altogether unchallenged,
and then, when it is impossible for him
to explain, as perhaps he might have
been able to do if such questions had
been put to him, the circumstances
which it is suggested indicate that the
story he tells ought not to be believed,
to argue that he is a witness unworthy
of credit.”
Section 146 of the Indian Evidence Act also provides that
when a witness is cross-examined, he may be asked any
question which tend to test his veracity. Yet no question was
put to PW-5 in cross-examination on the articles seized in
her presence. In the absence of any question with regard to
the seizure of the blouse, dhoti and broken bangles in
presence of PW-5, omission of this fact from her evidence is
no ground to doubt the veracity of her evidence.
12. The evidence of PW-5, in this case, is also corroborated
by other evidence. Section 157 of the Indian Evidence Act
provides that in order to corroborate the testimony of a
witness, any former statement made by such witness
relating to the same fact at or about the time when the fact
took place, or before any authority legally competent to
12Page 13
investigate the fact may be proved. The evidence of PW-5 is
corroborated by the evidence of her mother-in-law (PW-2)
before whom she stated about the commission of the rape
by the appellant soon after the incident the very same
evening. The evidence of PW-5 is also corroborated by the
FIR (Ex.9) before the Investigating Officer, PW-10, before
whom she lodged the complaint one day after the incident.
13. Further, though the medical evidence of PW-9 and the
medical examination report Ex. P-8 do not give any definite
opinion on whether or not PW-5 suffered any sexual
intercourse, soon after the medical examination on
22.12.1987, the petticoat and vaginal smear slides (which
were prepared and sealed) were sent for further examination
and the report of State Forensic Science Laboratory (Ex. P-
15) confirms spots of semen and spermatozoa. This
evidence confirms that PW-5 had been subjected to sexual
intercourse some time before she lodged the complaint in
the police station on 22.12.1987. Hence, the forensic
evidence is not entirely in conflict with the evidence of PW-5
so as to belie her story that she was raped by the appellant.
13Page 14
14. We further find that the appellant has not taken a
defence in his statement under Section 313 of the Criminal
Procedure Code that the sexual intercourse was with the
consent of PW-5. Instead, he has denied having had any
sexual intercourse with PW-5 and has taken a stand that he
has been falsely implicated on account of a quarrel between
him and the husband of PW-5.
Yet, the trial court held that
there was proof of sexual intercourse between the appellant
and PW-5, but the sexual intercourse was with the consent of
PW-5.
We are of the considered opinion that as the
appellant had not taken any defence of consent of PW-5, the
trial court was not correct in recording the finding that there
was consent of PW-5 to the sexual intercourse committed by
the appellant and
should have instead considered the
defence of the appellant that he had been falsely implicated
because of a quarrel between him and the husband of PW-5.
We have, however, considered this defence of the appellant
but find that except making a suggestion to PW-2, the
appellant has not produced any evidence in support of this
defence.
As PW-2 has denied the suggestion, we cannot
14Page 15
accept the defence of the appellant that he was falsely
implicated on account of a quarrel between the appellant
and the husband of PW-5.
15. We are also unable to accept the submission of Mr.
Mehrotra that the investigation by the police is shoddy and
hasty and there are defects in the investigation and
therefore benefit of doubt should be given to the appellant
and he should be acquitted of the charge of rape.
The
settled position of law is that the prosecution is required to
establish the guilt of the accused beyond reasonable doubt
by adducing evidence.
Hence, if the prosecution in a given
case adduces evidence to establish the guilt of the accused
beyond reasonable doubt, the court cannot acquit the
accused on the ground that there are some defects in the
investigation, but if the defects in the investigation are such
as to cast a reasonable doubt in the prosecution case, then
of course the accused is entitled to acquittal because of such
doubt.
In the present case, as we have seen, the evidence
of PW-5 as corroborated by the evidence of PW-2 and the FIR
establish beyond reasonable doubt that the appellant has
committed rape on PW-5 and thus the appellant is not
entitled to acquittal.
16. In the result, we are not inclined to interfere with the
finding of the guilt recorded by the High Court against the
appellant as well as the minimum sentence of 7 years
imprisonment for the offence under Section 376 IPC imposed
by the High Court. The appeal is accordingly dismissed.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
July 04, 2013.
