The statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration: Madhya Pradesh High Court

 THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR S. B. : Hon ble Shri Justice Rajendra Kumar Srivastava Cr.A.No.158 2015 Santosh @ Chumman Vs The State of M.P Shri Shashank Upadhyay learned counsel for the Shri Yogendra Das Yadav learned G.A. for the respondent JUDGMENT of the Criminal Procedure Code has been filed by the appellant accused being aggrieved by the judgment and finding dated 03.01.2015 passed by the learned II Additional Sessions Judge Chhatarpur District Chhatarpur in Session Trial No.264 2013 whereby the appellant accused has been convicted under Sections 366and 376(1) of the IPC and awarded sentences for 10 years R.I. in each offence with fine of Rs.2 000 and 3 000 respectively Default stipulations have also been imposed by the trial Court. It has been directed by the trial Court that both the sentences shall run concurrently. 2 Cr.A.No.158 2015 According to the case on 23.05.2013 the complainant lodged a missing complaint of his daughter i.e. prosecutrix mentioning therein that on 22.05.2013 at about 12:00 noon the prosecutrix went outside the house to bring water but she did not return back. During investigation it was revealed that the appellant kidnapped the prosecutrix cajolingly and took her in his motorbike. The appellant got arrested. Medical examination of prosecutrixwas also conducted wherein she was found to be subjected to rape by the appellant. Therefore the police has registered the FIRfor offences under Sections 363 366 A 376(1) of IPC as well as Section 4 of the POCSO Act After completing the investigation the police filed the charge sheet. The appellant accused abjured his guilt and claimed for trial therefore the trial Court proceeded further and recorded the statements of 14 prosecution witnesses as well as 1 defence witness and also recorded the statement of appellant accused under Section 313 of the Cr.P.C. After evaluating all the evidences adduced by the parties the trial Court found the appellant accused guilty 3 Cr.A.No.158 2015 for the offences punishable under Sections 366 A and 376(1) of IPC however the trial Court has acquitted the appellant accused for the offence under Section 363 of the IPC and Section 4 of the POCSO Act Learned counsel for the appellant submits that the judgment passed by the learned trial Court is bad in law and deserves to be set aside. He submits that learned trial Court did not appreciate the evidence in proper way and there are material contradictions and omissions available in the evidence of the prosecution witnesses. In fact the prosecutrix was in relationship with the appellant and she accompanied him voluntarily. The statement of the prosecutrix itself shows that she has not supported the prosecution story. The prosecutrix wandered with the appellant at many places but she did not raise any alarm which shows her consent. The trial Court acquitted the appellant accused for the offence under Section 4 of the POCSO Act. The family members of the prosecutrix were demanding Rs.2 00 000 from the appellant and due to non providing of the same this false case has been registered against him. The prosecutrix got married and is residing in her matrimonial house. There is no direct evidence against 4 Cr.A.No.158 2015 the present appellant and therefore benefit of doubt ought to have been given to the appellant. With the aforesaid he prays for allowing this appeal On the other hand learned G.A. for the respondent State opposes the submissions of appellant’s counsel submitting that the offences committed by the appellant accused are heinous in nature and therefore the trial Court has rightly convicted him. He submits that it is well established from the statement of Dr. Sanjana Robinson PW 9) that forcefully intercourse was done with the prosecutrix. The FSL report also indicates presence of semen in the articles seized from the prosecutrix as well as appellant accused. The prosecutrix herself given her statement against the appellant accused. Therefore the judgment passed by the trial Court does not warrant any Heard and perused the record On perusal of the record it appears that the appellant was facing trial for the offences under Sections 363 366 A and 376(1) of IPC as well as Section 4 of the POCSO Act however the trial Court acquitted the appellant under Section 363 of IPC and Section 4 of the POCSO Act 5 Cr.A.No.158 2015 As per the trial Court the prosecution has failed to prove that the prosecutrix was a minor girl at the time of incident Since the trial Court has given finding regarding the prosecutrix not being minor at the time of incident and said finding has not been challenged either by the State or prosecutrix therefore this Court does not find it proper to touch the finding of trial Court regarding age of the prosecutrix at the time of incident and will confine itself to the question of conviction under Sections 366 A and 376(1) of IPC of the appellant accused On perusal of the impugned judgment it appears that the trial Court has found proved the fact that on the day of incident the prosecutrix was taken away by the appellant accused cajolingly and thereafter he committed sexual intercourse with her forcefully. Now the only question remains to be decided by this Court is whether the finding of trial Court regarding conviction of appellant accused under Sections 366 A and 376(1) of IPC is correct or not As per the missing complaint lodged by the father of prosecutrixon 22.05.2013 the prosecutrix went outside of the house for getting water but she did not 6 Cr.A.No.158 2015 return back. On 29.05.2013 statements of Rajendra Sahu PW 5) and Dinesh Kumar Yadav were recorded wherein they informed the police that they saw the appellant accused taking the prosecutrix in his motorcycle However both the witnesses have turned hostile before the trial Court. Thereafter on 30.05.2013 the prosecutrix was recovered from the bus stand Luvkush Nagar. Further on 30.05.2013 the statement of prosecutrix under Section 161 of Cr.P.C. was recorded by the police wherein she stated against the appellant accused alleging that he committed sexual intercourse with her forcefully On 05.09.2013 statement of prosecutrix was recorded by the trial Court wherein she stated that on 22.05.2013 the appellant accused forcefully took her in his motorcycle to Village Laudi thereafter by bus they reached Chhatarpur and after that Haryana where the appellant accused committed forcefully sexual intercourse with her. She further stated that when she got mobile phone of the accused she informed her uncle thereafter on 29.05.2013 appellant accused brought her to village Laudi via Chhatarpur where brother of appellant accused met and brought them to police station. During the cross 7 Cr.A.No.158 2015 examination the learned counsel for the defence had asked a question to the prosecutrix as to why she did not raise any alarm while traveling with the appellant accused and the prosecutrix has explained saying that she was subjected to intimidation by the appellant accused. She further stated that the appellant accused locked her in a room when he went outside due to that reason she could not inform anybody about her abduction Therefore the Prosecurtix is found stable on the point of forcefully sexual intercourse by the Dr. Sanjana Robinson performed the medical examination of prosecutrix wherein she found that hymen of prosecutrix was teared and blood was oozing from her private part. She opined that forcefully sexual intercourse was done with the prosecutrix. The articles seized from the possession of the prosecutrix and appellant accused were also sent for Forensic Examination On perusal of the FSL report i.e. Ex.P 16 semen was found in the slide and undergarments of the prosecutrix as well as appellant accused therefore the FSL report also indicates 8 Cr.A.No.158 2015 about performing sexual intercourse with the prosecutrix by The learned counsel for the appellant has filed this appeal mainly on the ground that the prosecutrix being major was a consenting party and she willfully accompanied the appellant and therefore no offence under Sections 366 as well as 376 of IPC are made out against As discussed above in the statement of prosecutrix either recorded before the trial Court or by the investigating officer she is found stable on the point that she was subjected to forceful intercourse by the appellant however the conduct of prosecutrix while traveling with the appellant prima facie indicates her consenting behaviour towards the appellant but in her cross examination she stated that she was intimidated and confined by the Under the Indian Evidence Act 1872 there is presumption of Section 114 A wherein it is prescribed that where sexual intercourse by the accused was proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her 9 Cr.A.No.158 2015 evidence before the Court that she did not consent the Court shall presume that she did not consent In the case of State of H.P. Vs Raghubir Singh reported in 2 SCC 622 the Hon ble Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. In the case of Krishna Kumar Malik vs. State of Haryana reported in 7 SCC 130 it is observed and held by the Supreme Court that no doubt it is true that to hold an accused guilty for commission of the offence of rape the solitary evidence of the prosecurtix is sufficient provided that the same inspires confidence and appears to be absolutely trustworthy unblemished and should be of In the case of Ganesan v. State 10 SCC 573 relying upon both the above referred judgments the Supreme Court has observed as under Cr.A.No.158 2015 10 “10. In the present case the appellant accused has been convicted by the learned trial court for the offence under Section 7 punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial court as well as the relevant evidence on record more particularly the deposition of PW 1 father of the victim PW 2 mother of the victim and PW 3 victim herself. It is true that PW 2 mother of the victim has turned hostile. However PW 3 victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross examined. We do not see any good reason not to rely upon the deposition of PW 3 victim. PW 3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law even there can be a conviction based on the sole testimony of the victim however she must be found to be reliable and trustworthy Whether in the case involving sexual harassment molestation etc. can there be conviction on the sole evidence of the prosecutrix in Vijay8 SCC 191 it is observed in paras 9 to 14 as under: “9. In State of Maharashtra v. Chandraprakash Kewalchand Jain 1 SCC 550 : 1990 SCC210] this Court held that a woman who is the victim of sexual assault is not an accomplice to the crime but is a victim of another person s lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: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 10. In State of U.P v. Pappu 3 SCC 594 : 2005 SCC780 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused This Court further held that there can be conviction on the sole testimony of the prosecutrix Cr.A.No.158 2015 12 and in case the court is not satisfied with the version of the prosecutrix it can seek other evidence direct or circumstantial by which it may get assurance of her testimony. The Court held as corroboration ‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon in material particulars. She stands at a higher pedestal than an injured witness. In the latter case there is injury on the physical form while in the former it is both physical as well as psychological and emotional. However if the court of facts finds it difficult to accept the version of the prosecutrix on its face value it may or search assurance to her testimony. Assurance short of corroboration as understood in the context of an accomplice would do.’ direct which would for evidence 11. In State of Punjab v. Gurmit Singh2 SCC 384 : 1996 SCC 316] this Court held that in cases involving sexual harassment molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained but if found natural the accused cannot be given any Cr.A.No.158 2015 13 benefit thereof. The Court observed as under SCC pp. 394 96 & 403 paras 8 & 21 ‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car how can that become a ground to discredit the testimony of the prosecutrix The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … 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. … Seeking corroboration of her statement before relying upon the same as a rule in such cases amounts to adding insult to injury. … 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. … 21. … The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or Cr.A.No.158 2015 14 The testimony of insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.’ 9 SCC 86 : 2003 SCC1080] this Court held that rape is not mere physical assault rather it often distractsthe whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases non examination even of other witnesses may not be a serious infirmity in the prosecution case particularly where the witnesses had not seen the commission of the offence 13. In State of H.P. v. Raghubir Singh2 SCC 622 : 1993 SCC674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v State of M.P.1 SCC 1208] placing Cr.A.No.158 2015 15 reliance on an earlier judgment in Rameshwar v State of Rajasthan 14. Thus the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable requires no corroboration. The court may convict the accused on the sole testimony of the 10.2. In Krishan Kumar Malik v. State of Haryana Krishan Kumar Malik v. State of Haryana 7 SCC 130 :3 SCC61] it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy unblemished and should be of sterling 10.3. Who can be said to be a “sterling witness” has been dealt with and considered by this Court in Rai Sandeep v. State[Rai Sandeep v. State NCT of Delhi) 8 SCC 21 : 3 SCC Cri) 750] . In para 22 it is observed and held as under:has also deposed that prosecutrix stated that the appellant accused committed forcefully sexual intercourse with her. After careful examination of all the material evidence available on record it is found that the appellant accused abducted the prosecurtix took her to Haryana where he committed sexual intercourse with her forcefully. Therefore finding recorded by the trial Court is 18 Cr.A.No.158 2015 found correct and thus the impugned order dated 03.01.2015 passed in Session Trial No.264 2013 is hereby As far as sentence to the appellant is concerned it shows that the appellant is in jail since 30.05.2013 and thus he has suffered about 8 years of his jail sentence out of maximum 10 years of conviction. Considering the facts and circumstances of the case the awarded sentence of 10 years to the appellant is hereby modified to the period already undergone by him i.e. about 8 years. The fine amount and default stipulation imposed by the trial Court be as it is The appellant be set at liberty forthwith if he is not required in any other case The appeal is disposed off. (Rajendra Kumar Srivastava Judge

Summary: The sole testimony of the victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. After careful examination of all the material/evidence available on record, it is found that the appellant abducted the prosecurtix, and committed sexual intercourse with her forcefully: This was said in the case of Santosh @ Chumman vs The State Of Madhya Pradesh [Cr.A.No.158/2015] by Justice Rajendra Kumar Srivastava in the High Court of Madhya Pradesh. The facts of the case date back to 03.01.2015 when trial judge convicted the appellant under 366 (A) and 376(1) of IP and awarded sentences for 10 years’ R.I. in each offence with fine of Rs.2,000/- and 3,000/- respectively. Assailing the judgment of the trial Court, an appeal under Section 374(2) of the Criminal Procedure Code was filed by the appellant. The appellant contended that the prosecutrix was in relationship with the appellant and she had voluntary sexual intercourse with him. The prosecutrix wandered with the appellant at many places but she did not raise any alarm which shows her consent. Secondly, it was contended that the family members of the prosecutrix were demanding Rs.2,00,000/- from the appellant and due to non- providing of the same, this false case has been registered against him. Thirdly, it was contended that there is no direct evidence against the present appellant and therefore, benefit of doubt ought to have been given to the appellant. On the other hand, the respondent-State opposes the submissions of appellant’s counsel submitting that the offences committed by the appellant/accused are heinous in nature and therefore, the trial Court has rightly convicted him. He contended that it is well established from the statement of the prosecutrix and prosecution witness that forceful intercourse was done with the prosecutrix. Secondly, it was contended that the FSL report also indicates presence of semen in the articles seized from the prosecutrix as well as appellant/accused. The Court referred to the case of Raj Sandeep v. State (NCT of Delhi) [(2012) 8 SCC 21] wherein it was said that “witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged”