1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) Criminal Appeal No. 1195/2006 SINGLE BENCH PRESENT : HON'BLE SHRI JUSTICE G.S. Solanki Buddhu @ Parshottam and another Versus State of Madhya Pradesh. ------------------------------------------------------------------- Shri Sanjay Patel, Advocate for the appellants. Shri P.C. Jain, Panel Lawyer for the State. Date of hearing: 13/01/2011 Date of Judgment: 01/07/2011 J U D G M E N T Special Judge, appointed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Damoh has passed the impugned judgment dated 1/5/2006 in Special Case No. 69/2004 whereby appellants have been convicted under Sections 366 & 376(2)(g) of Indian Penal Code and sentenced each of them to undergo rigorous imprisonment ten years with fine of Rs. 500/-, rigorous imprisonment ten years with fine of Rs. 500/- respectively. In default they have to suffer further one years (each) rigorous imprisonment. Both sentences run concurrently. Being aggrieved, appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure. 2 2. Prosecution case in short is that prosecutrix is a member of scheduled tribe community. She earned livelihood by singing. On 14/8/2004, appellants contacted prosecutrix for singing at the home of appellant Buddhu @ Parshottam (A/1) in the eve of ganta ( a ceremony of newly born child) for one night. Thereafter prosecutrix went to village Bilawar and collected her singing party Tantu, Raja, Maniram (PW5), Puttu Yadav (PW7), Kailash Yadav etc. and proceeded to Gulganj from where appellants hired a jeep of Gauri Shankar (PW9). The appellants and aforesaid singing party travelled in a jeep to Hatta where, except prosecutrix and appellants, other persons went for taking their meals at a Dhaba. Appellant Karan called appellant Buddhu @ Parshottam, at the same time Gauri Shankar (PW9) also came there. Appellant Parshottam told them that he required to go at home for bringing money and he himself driving the jeep. After sometime he turned the jeep towards forest of Patera then owner of the jeep Gauri Shankar (PW9) jumped away from the jeep. It is further alleged that after sometime appellant Parshottam stopped the jeep near a nalla and committed rape on prosecutrix in the jeep. It is further alleged that the appellants took the prosecutrix to Dhbua and kept her till 15/8/2004 where both of them further committed rape on her. On 17/8/2004 they also committed rape on her. In the evening at 8 O'clock when appellant Karan went away, the appellant Parshottam took her to Sobhanagar, where he committed rape on her. It is 3 further alleged that when Parshottam slept in the night, she found an occasion and ran away from there and lodged a report Ex.P/1 at police station Patera in the morning at 4 O'clock. Police registered a crime against the appellants. Prosecutrix was medically examined by Dr. Sangeeta Trivedi (PW21). She prepared the MLC report of prosecutrix Ex.P/17. Appellants were arrested and medically examined by Dr. V.C. Jain (PW15). 3. After usual investigation appellants were charge sheeted. Learned Special Judge, Damoh framed the charges against the appellants for offence punishable under Sections 376(2)(g), 366 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. They abjured their guilt and pleaded that they have been falsely implicated. 4. On appraisal of the evidence on record, learned Special Judge, Damoh acquitted the appellant Buddhu @ Parshottam for offence punishable under Section 3(2)(v) of the SC/ST Act and the appellant Karan for offence punishable under Section 25(1B)(a) of the Arms Act, but convicted the appellants under Sections 366 & 376(2)(g) of the IPC and sentenced as mentioned hereinabove. Hence this appeal. 5. Learned counsel for the appellants submitted that the trial Court committed illegality in not appreciating the evidence on record in its true perspective. He further submitted that learned trial 4 Judge committed error in placing reliance on the testimony of prosecutrix which is full of contradiction, omission and improvement and has not been corroborated by medical evidence, therefore, he prays for setting aside the impugned judgment and further prays for acquittal of the appellants. 6. On the other hand, learned Panel Lawyer for State justified and supported the impugned judgment of the trial Court. 7. I have heard the learned counsel for the parties and perused the impugned judgment, evidence and other material on record. 8. Prosecution examined as many as 25 witnesses. Prosecutrix Vineeta (PW1) deposed that appellant Buddhu @ Parshottam alongwith appellant Karan contacted her for singing. She further deposed that when she alongwith her singing party finalized the contract of singing in the sum of Rs. 2,000/- then appellant Buddhu @ Parshottam took a Marshal Jeep on hire for village Patera. She further deposed that Tantu, Raja, Maniram, Puttu Yadav, Kailash Yadav, Gauri Shankar and appellants proceeded for Patera from Gulganj at about 3 O'clock and reached at Hatta at about 8 O'clock in the evening. Thereafter appellant Buddhu took the singing party to a Dhaba for their meals. She further deposed that when she was sleeping in the vehicle (jeep) the appellant Buddhu driving the vehicle out the Hatta City. When she woke up and asked the appellant where we are going then appellant Buddhu 5 told her that they are going to take money. She further deposed that when vehicle reached in the forest, driver of the vehicle jumped out from the jeep due to fear. Thereafter, appellant Buddhu took out a revolver, threatened her and committed rape on her inside the jeep. Appellant Karan also committed rape on her. She further deposed that they left the vehicle and proceeded in the forest. They stayed for two days at the home of one Barouni, where appellants again committed rape on her. On third day they took her to the farm of other village where they stayed up 2 O'clock, where they again committed rape on her. Thereafter the appellants took her to a house of one Ahirwar in village Patera and committed rape on her there also. Appellant Karan fled away from there and when appellant Buddhu slept she ran away from the house and reached to the police station Patera and lodged the report Ex.P/1. 9. Babulal (PW2), cousin brother of prosecutrix, supported the version of the prosecutrix to the extent that appellants came at home and thereafter in the morning the prosecutrix left the house alongwith the appellants for singing on the eve of newly born child at the house of appellant Buddhu @ Parshottam. 10. Maniram (PW5), Udal Singh (PW4), Puttu @ Mayadeen (PW7)and Gauri Shankar (PW9) supported the prosecution up to the extent that appellants and prosecutrix were travelled in a Mahendra Max Jeep No. MP-36-D/0366 up to Hatta Bus Stand. All of them deposed that at 7 O'clock in the evening when appellant Buddhu @ Parshottam told them to take their meals, 6 Gauri Shankar (PW9) specially deposed that at the instance of appellant Buddhu, male members of singing party like Maniram alongwith driver Udal Singh (PW4) and others went for taking their meals. This fact is substantially corroborated by Udal Singh (PW4), Maniram (P5) and Puttu @ Mayadeen (PW7). 11. Gauri Shankar (PW9) further corroborated the version of the prosecutrix by deposing that when he and prosecutrix Vineeta (PW1) remained in the jeep and other persons as aforementioned went for their meals at Dhaba, appellant Buddhu told him to drive vehicle for taking money from his house, when he refused then appellant Buddhu threatened him by country made pistol and he himself drove the vehicle. Gauri Shankar further deposed that after travelling some distance appellant turned the vehicle towards forest then due to fear he jumped from the vehicle and ran away and went to the police station. He and police personnel went for search of the jeep which was found in the forest. Despite extensive cross-examination this witness remained undeviated and from the statement of this witness it is proved that appellants took away prosecutrix forcefully with malafide intention because appellant Buddhu mislead the male members of singing party and left them at Dhaba. 12. Ratiram (PW3) resident of village Patera deposed that when he was sleeping in his house (Tapra), appellant Buddhu awoke him, he saw that appellant Buddhu having a lathi in his hand and one girl was with him. He further deposed that appellant told him that he 7 want to stay for sometime and threatened him and asked him not to make noise. He further deposed that appellant Buddhu told him to go and sleep therefore he went to sleep in the room. Thereafter at 3-4 O'clock police party came to his house with the said girl (prosecutrix) and arrested the appellant Buddhu. 13. Ramji (PW6) substantially corroborated the version of Ratiram (PW3). Both witnesses remained intact in cross-examination. It shows that appellant Buddhu had taken the shelter at the house of Ratiram and threatened him for not making noise. They corroborated the version of the prosecutrix that when appellant Buddhu slept she ran away from the house of Ratiram and reached to the police station Patera where she lodged the report Ex.P/1. Then prosecutrix came with police to the house of Ratiram, where appellant Buddhu was arrested. 14. Now I have to scrutinize the version of prosecutrix in the light of contention raised by learned counsel for the appellant. Learned counsel for the appellant submitted that prosecutrix was a consenting party, she is grown up lady and there is no medical corroboration on record, therefore, trial Court committed illegality in placing reliance on the testimony of the prosecutrix. 15. As discussed hereinabove that prosecutrix was going with appellants alongwith her singing party but appellant deliberately mislead the other male members of the singing party, left them at Dhaba of 8 village Hatta and took the prosecutrix in forest where Gauri Shankar (PW9) jumped away from the jeep due to fear of appellant Buddhu, who having a katta (country made pistol). In these circumstances, it cannot be expected from the prosecutrix to make hue and cry against barbaric person like appellant Buddhu, therefore, prosecutrix has no option but to surrender herself before the appellants. It is true that prosecutrix has admitted that appellant No.2 is distinct relatives. When I analyzed the relationship on the basis of deposition of para-12, I found that appellant Karan is brother-in-law of Maltu, who is the brother-in-law of her brother Babulal, it means he is very far distinct relatives of prosecutrix. 16. The story of having country made pistol is also corroborated by Gauri Shankar (PW9). It is true that this case is lacking on the medical corroboration. Dr. Sangeeta Trivedi (PW21) examined the prosecutrix and found that her hymen was old & torn and she was habitual to intercourse but this fact that prosecutrix was habitual to intercourse is not itself sufficient to discard her testimony. Trial Court in para-30 of its judgment rightly commented on the basis of AIR 1990 SC 538, State of Haryana Vs. Prem Chand and others and AIR 1991 SC 207, State of Maharashtra Vs. Madhukar Narayan Mardikar that no one is allowed to interfere the privacy of woman. Even woman of easy virtue is entitled to her privacy, same cannot be invaded by any person. It is also well established principle of law that even prostitute has a right to protect her person and when someone commit intercourse with her without 9 her consent then he is liable to be punished under Section 376 of IPC. 17. Learned counsel for the appellants placed reliance on AIR 1977 SC 1307, Pratap Misra and other Vs. State of Orissa. The fact of the instant case is not identical to the case cited by the learned counsel. In that case there was no corroboration by medical evidence, therefore, inference of consent of prosecutrix was drawn, but as discussed hereinabove in this case prosecutrix was under fear of her life and she was alone therefore, she cannot be expected to resist the person, who having a country made pistol with him as well as it is a case of gang rape, therefore, consent of the prosecutrix with two persons cannot be inferred. It is true that she lived in the house of one lady for two days and thereafter at the farm of other male but from the evidence of Ratiram (PW3), it reveals that appellants threatened him and appellant Buddhu and prosecutrix slept in other room. Whenever she find occasion to fled away, she ran away in the night toward police station and then she came with police party to the house of Ratiram. Aforesaid conduct of prosecutrix shows that she was not a consenting party. 18. It would be appropriate to consider the principle laid down by the Supreme Court, for appreciating evidence in cases pertaining to offence under Section 376 and importance to be given to discrepancies. In the famous case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, in paragraph 5(6) and 5(7), it is so observed by the 10 Supreme Court: “5. xxx xxx xxx (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. xxx xxx xxx” Thereafter, in paragraphs 6, 7 and 8, the matter is so dealt with: 11 “6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the version narrated by the witnesses. 7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar Vs. State of Rajasthan, (1952) 3 SCR 377 at p. 386 :(AIR 1952 SC 54 at p.57), has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court- “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to 12 dispense with it, must be present to the mind of the Judge, .... .... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.” 8. And whilst the sands were running out in the time-glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of 'logos' and 'ethos', has been necessitated. And, finally in paragraph 9, the principle so crystallized: “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 13 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. ... ...” (Emphasis supplied) 19. Facts of the case in hand if scrutinized in the backdrop of the aforesaid principle, prosecutrix was separated from her singing party by misleading act of appellant and thereafter on the point of knife in the night she was subjected to rape in lone forest by both of appellants. As discussed hereinabove that in these circumstances, during the night in lone forest it cannot be expected from prosecutrix to struggle with appellants. It was a case of surrendering herself before the appellants. 20. When prosecutrix came out of the clutches of appellants, she immediately rushed to police Station Patera in the night itself and reported the matter and came with the police party to the house of Ratiram where appellant Buddhu has been arrested and other appellant already fled away. 21. In these circumstances, version of prosecutrix further supported by FIR Ex.P/1, which was recorded by H.R. Pandey (PW25). 14 22. After careful scrutinizing the evidence of prosecutrix which was corroborated by FIR Ex.P/1 and further corroborated by the evidence of Gauri Shankar (PW9) and partly corroborated by other witnesses who went with her for singing, I am of the view that the trial Court had not committed any illegality in appreciating the evidence on record. The prosecution succeeded in proving the offence under Sections 366 & 376(2)(g) of IPC against the appellants. 23. Considering the facts and circumstances of the case, the sentence recorded by the trial Court under Sections 366 & 376(2)(g) of the IPC cannot be said to be severe, therefore, the appeal filed by the appellants deserve to be dismissed and is hereby dismissed. 24. Appellants are in jail. Record of the trial Court be sent back with a copy of this judgment for necessary compliance. (G.S. Solanki) JUDGE ravi