te& X- ^^:.:; Bwh(Cw)8at1 B3 THE HIQH CGUKP OF M«DmA PRMffiai t tS O'ABai.POS. C&lHINaL AHPEM. HO. ,OS~ 1989. ^ 1. Panj±'s/o Kedar Kewa-t aged about 21 yesBS, y' 2. Kbamhan/s/o Baraj Kewat' aged'Aout 25 years, „a-^ tK~^.y^ ,3» Paggu s/o^Parsu Kewat aged ctooat 25 years, /• ' .' Ml R/o Vtilages Kanamuklca P.S. A'naapur,, Bis-fct. Raipur' (MP) . •»•••,, AE'PEIAASTS: (IN »TAIL) VESSOS / The State of Madhya Pradesh BSSPCBiIDroa?'. CRIMISAL aPPEAL_X?/S._374(2^_OF_THE_CR^P^C^ HI6H COURT OF WHATTLSSAW AJ BIUtSPUR Cr. ADpeal No. 1187/1989 Single Bench: t-lon'bte Shri Dilip Ra<»aheb Deshmukh, J. Panji and others Versus State of Madhya Pradesh (now State of Chhattisgarh) Shri Kishore Bhdduri. Advocate with Shri Roop Naik, Counsel for the appellants. Shri Ashish Shukta, 6ovt. Advocate for the State JUD6MENT (Delivered on this 24th day of April 2006) This appeal is directed against the judgment dated 13.12.1989 delivered by the 2 ^dditionaf 5essions Judge, Raipur in Sessions Case No. 21/1987 u^ereby the appellant No.l-Panji was conyjcted for- offence under Section 3761.P.C. and the appellants No.2 & 3-Khamhan A Faggu were convicted under Section 376 read with Section 341.P.C. and each cppellont was sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.500/- each and in defcult to undergo RJ. for 2 months. 2. Briefly stated the factual matrix is that on 23.10.1986 at about 6.00 P.M. while the prosecutrix, a married woman, went to fetch water from the canal, the oppellants were already present there. The c^pticant No.l-Panji caught the hand of the prosecutrix and dragged her to a nearby place. When the prosecutrix shouted, the appetlouit- Faggu gagged her mouth with a piece of her saaree. The appellant Khamhan caught hold of the hands of the prosecutrix and oypellant- Panji commited pape on "Hie prosecutrix. During the commission of rape by the appellont-Panji, Suklabai P.W.2, mother of the prosecutrix, arrived at the place of occurrence. The appellonts ran _t— @) -^ away on seemg her. The prosecutrix narrated the incident to her mother and returned home. Thereafter riie went to the Mirchi Badi and informed the incident to her fa-ther Ramji, the village Kotwar. Vide Ex.P.1 FJ.R. was lodged on 24.10.1986 at 9.30 P.M. at P.5. Abhonpur situated at a distance of 18 kilometers from the place of occurrence. Prosecutrix was sent for medical examination. t)r. Sarita Dubey P.W.5, on examination, did not find wvf external injury or evidence of violence on the body of the prosecutrix. She found an old vaginal tear. The prosecutrix did not complain of ony pain. No bleeding from the vagina wos seen. 5he could not give any definite opinion regarding the sexual intercourse with the prosecutrix. Vaginal slides of the prosecutrix prepared by Dr. Sarita Dubey and the petticoat of the prosecutrix seized vide Ex.P.2 on 24.10.1^6 were sent for examination to the Forensic Science Laboratory, Sagar. Vide report Ex.P.13, no seminal stains and humon ^ermatozoa wus detected on these articles. However, presence of blood was confirmed on both. The nccused-appellomts were examined by br. V.K.Tamrakar P.W.6 on 29.10.1986 who found the appellants copable of performing sexual intercourse. After completion of investigation, the appellants we.re prosecuted. 3. The appellants abjured the guitt ond pleaded innocence. The prosecution examined as many as eight witnesses. The oppellants examined Dularwaram t).W.l in defence, who was not examined by the prosecution though cited. The learned trial Judge relying upon the testimony of the prosecutrix and Suklabai P.W. 2 convicted cnd sentenced the oqipellants as aforesaid in paragroph-1. 4. Siri Kishore Bhaduri, learned counsel for the appellants has assailed the conviction of the appellants on the ground that the testimony of -the prosecutrix is wholly unretiable since it is npt -3- -^-" corroborated either by medical evidence or by the report of Forensic Science Laboratory. It was also urged that the prosecutrix hcxs made a specific assertion in her evidence •tiiat report of the incident was lodged on the night of Ihe occurrence itself at Police Station Abhanpur which has been suppressed by -Hie prosecution. Referring to paragraph-11 of the testimony of the prosecutrix, it wos argued that medical evidence ought to have been forthcoming in view of what was stated by the prosecutrix regarding the injuries sustained by her. It was also contended that Ramji, the father of the prosecutrix and yillage Kotwar, to whom •t+ie prosecutrix had narrated the incident, was a\so not examined by the prosecution for which adverse inference ought to have been drawn against the prosecution. It was lastly contended that in view of the testimony of the prosecutrix in parograph 2 and her admission in para9raph 10 as also the admission made by the Investigating Officer B.K-Uike P.W.8 in paragroph 13 that there was a group rivalry in the vitlage and father of the prosecutrix had been removed from the post of Kotwar on the complaint of the villagers, it could not be ruled out that the appellants have been falsely implicated. Reliimce was placed on Sheitrfi Zakir v. 5/ate of Bihw A.I.R. 1983 SC 911. Siate of Raiasthan v. Shri Naravan A.I.R. 1992 SC 2004. Pratem Misra and oihers v. Slsteof Orissa A.I.R. 1977 5.C. 1307 = 1977 Cri. L.J. 817. Saniay Vs. State of Harvana) 2005(31 Criminal Court Cases 294 (S.C.). Sfate Sovemment of Manvur v. l&ikchinatabam Sourachandra Sarma 1968 Cri.L.J. 1390. On the other hond, Shri Adiish Shukla, learned ©overnment Advocate has argued in support of the impugned judgment while contending that corroboration by medical evidence was not expected to be forthcoming since the prosecutrix is a married woman. He also argued that the evidence of the prosecutrix wos worthy of credence and conviction of the oppetlants on the sole testimony of the prosecutrix by the learned trial Judge was proper. 5. Having heard the rival ajbmissions, I have perused the record of Sessions Case No.21/87. It is sett^ed \OSH that a conviction can be based on the sole testimony of 1+ie prosecutrix if it inspires confidence ond is worthy of credit. As held in the case of Bharwada ociinbhai Hiriibhai v. Sivte of ffuiiwt AIR 1983 SC 7S3 by the Apex Court if the evidence of the victim does not suffer from any basic infirmity and the "probabilities-factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. Testing the testimony of the prosecutrix on the above touchstone, it is found that in paragriaph 11, she has specifically narrated that die was dragged by the appellonts on rough surface due to which her back, feetand thighs had sustnined injuries which were afso shown by her to the Doctor. In view of the positive assertion made by the prosecutrix in paragraph-11, medical evidence ought to be forthcoming in this case to corroborate the version of the prosecutrix. &r. Sarita Dubey P.W.5 has testified that she did not find any external injury or marks of violence on the body of the prosecutrix ond could not give any opinion about any recent %xual intercourse with the prosecutrix. 6. The prosecutrix has in paragrdph 5 made another positive assertion that she had accompanied her father to Potice Station, Abhonpur on the night of the incident ond had lodged F.I.R. on the same day. She h<xs also denied the suggestion that die had lodged the FJ.R. on the next cby. However, no such FJ.R. lodged by the TJ -s^ prosecutrix on 23.10.1986 has been produced by the prosecution which creates a serious dent in the prosecution story. 7. Another fact which renders the testimony of the prosecutrix about the rape having been committed on her by the appetlouit-Panji unretiable, is the absence of flmy seminal stains or humoui spermatozoa not only on the vaginal slides prepared by Dr. Sarita Dubey P.W.5 but atso on her petticoat which was seized immediately after the FJ.R. was lodged. 8. It is pertinent to note that the pro%cutrix has in paragroph 2 stated that on the date of occurrence when she had gone to canal to fetch water, a quarrel had ensued between the dppellants and herself since some water had got sprinkled over her from the fishing net being used by the oppellants. She has alleged that thereafter the appellant-Panji had assaulted her with the handle of the bullock-cart twice on her thighs. In the absence of Otv/ corroboration whatsoever from the medical eyidence, this positive assertion by the prosecutrix is atso rendered untrustworthy. 5he has further stated that thereafter she returned home, narrated the incictent to her mother whereupon her mother had also abused -the oppellants. A crowd of 50 - 60 persons including the oppellants had surrounded their house. Thereafter a quarrel had taken place. It is pertinent to note that all these material factors were not mentioned by the prosecutrix in the FJ.R. Thus, the very genesis for the alleged commission of the offence has been suppressed by the prosecutrix in ttie FJ.R. 9. It is also to be noticed that the prosecutrix has stated that immediately after the appellant-Panji had started the sexual act she had shouted whereupon her mother SjRlabai had arrived at the scene of occurrence and the appellants ran awoiy on seeing her. The -<d- @ prosecution has also filed the statement of Suklabai P.W.2 recorded under Section 164-Cr.P.C. which clearly riiows that on hearing shouts of her ckiughter she reached the canal and did not see the oypellants there. It is also pertinent to note that Suklabai P.W.2 has made a positive assertion in paragroyh 2 of her testimony that when reached the canal and saw the appellants run away, the prosecutrix did not narrate the incident to her at that place caid on retuming home riie had gone to call her husband from the Mirchi Badi. The prosecutrix has sta-ted that die had gone to the Mirdii Badi and called her father. If the incident was promptty reported by the prosecutrix to her father-Ramji who was also the village Kotwar, Ramji would have been a material witness to corroborate the testimony of the prosecutrix. Non-examination of Ramji also renders the prosecution story doubtful. The prosecutrix has admitted in paragroph 10 that the villagers had made a complaint for removal of her father from the post of Kotwar. She did not deny that a fine was atso imposed on her father. The Investigating Officer Mr. B.K-Uike P.W.8 in paragraph 13 has also stnted that father of the prosecutrix was the villay Kotwar. He has also not denied that Ramji had been removed on the complaint of the appellants from the post of village Kotwar. He also admitted that there was a group rivalry in the village. In this view of the matter, the assertion by the learned counsel for the cppellonts that the appellants have been falsely implicated can not, -therefore, be ruled out. 10. Dularwaram though cited by the prosecution as a witness was not examined by the prosecution. The appetlant examined him as a wfhiess for the defence. t-lis testimony that while the prosecutrix had arrived at the canal for fetching water, •there was a quarrel with the oppellants whereupon mother of the prosecutrix came and started abusing, thereafter he was present at •the canul till 8. P.M. and did not ^^ see the commission of the alleged offence by the appetlants during that period. The testimony of Dularwaram is wholly unrebutted in cross-examination. His presence at the scene of quarrel near the canal cannot be disputed since this witness wos cited by the prosecution, though not examined. 11. Having thus considered the evidence led by the prosecution in its entiret/, I am of the considered opinion that the testimony of the prosecutrix does not inspire confidence and is not worth credence ond, therefore, could not form the basis for convicting the appellcnt No.l under 5ection 376 I.P.C. ond the appellonts No.2 and 3 under Section 376 read with Section 34 of the I.P.C. Conviction of the oppellant-Pcmji under Section 376 I.P.C. as also conviction of the fl^petlants-Khamhan ond Faggu under Section 376 read with Section 34 of the I.P.C. and the sentences awarded by the learned trnl Judge •ttiereunder deserve to be set aside. 12. In the result the appeal is allowed. Conviction of the appellont- Panji under Section 376 I.P.C. as also conviction of -riie appeltants- Khamhan and Faggu under Section 376 read with Section 34 of the I.P.C. and the sentences awarded by the learned trial Judge •thereunder are set aside. The appellants are acqwtted and they shall be set at liberty forthwith. Bail bonds of the appellonts shall stand cancelled. Fine, ifpaid, shall be refunded. _—— DiUp Raos Sd/- aheb Deshmukh Judge ^ym