DINESH JAISWAL v.

STATE OF M.P. (Criminal Appeal No. 956 of 2005)

JANUARY 12, 2010 [Harjit Singh Bedi and J.M. Panchal, JJ.]

2010(1) SCR 1063 The following Order of the Court was delivered

O R D E R

The facts leading to the appeal are as under :

At about 4.00 P.M. on 8th July, 1987 the prosecutrix (PW-1) was alone in  

her house situated in Village Magrohar, Police Station Rampur Naiken. The  

appellant, who was known to her, entered the house and after having inflicted  

three tangi blows on her head and hands, raped her. The prosecutrix also, in  

defence, snatched the tangi from the appellant and caused several injuries on  

his head while he was leaving the room. As a result of the injuries suffered,  

both became unconscious.  In the meanwhile, Sampat the husband of  the  

prosecutrix, arrived at the scene and she told him about what had happened.  

She  also  called  Babulal  (PW-2)  her  son  and  Shivbalak  (PW-3)  a  distant  

relative,  and they along with several  other persons reached the spot.  The  

prosecutrix thereafter accompanied by her husband Sampat, Babulal and the  

others  afore  referred  lodged  the  First  Information  Report  (Exhibit  P-1)  at  

Police Chowki Khaddi on the same day at about 7.30 p.m. The prosecutrix  

was also sent for a medical examination which was carried out the next day  

by Dr.  Kalpana Ravi  (PW-5),  who found three injuries  on her  and further  

recorded that  as she was a married woman of  42 years,  it  had not  been  

possible to give a categoric opinion about any recent sexual encounter. The  

appellant was also examined by Dr. S.B. Khare (PW-6) and his report Ex. P-

6/A revealed six injuries, several of them on the head including Injury No. 6,  

which was grievous as his teeth had been knocked out. On the completion of

the investigation a charge for offences punishable under Sections 376, 323  

and 506 of  the Indian Penal  Code was framed.  The appellant  denied the  

charge and was brought to trial. During the course of the trial, PWs 2 and 3,  

Babulal  and  Shivbalak  the  son  and  relative  of  the  prosecutrix  who  had  

reached the place of  incident,  soon after  the alleged rape,  were declared  

hostile and they gave a version contrary to what had been deposed to by the  

prosecutrix. The trial court also found, endorsing the view of Dr. Kalpana Ravi  

(PW-5), that as the prosecutrix was a married woman, it was impossible to  

give a categoric opinion about any recent sexual intercourse but relying on  

the sole testimony, of the prosecutrix,  sentenced the appellant to undergo  

rigorous imprisonment for 10 years under Section 376 of Indian Penal Code  

and to other terms of imprisonment for the other offences. The High Court  

dismissed the appeal and confirmed the sentence. The matter is before us  

after the grant of special leave.  

The learned counsel for the appellant has raised three arguments during  

the course of hearing. He has first pointed out that the two primary witnesses,  

both relatives of the prosecutrix, including Babulal her son had been declared  

hostile  and  had  not  supported  the  prosecutrix’s  case  and  as  the  story  

preferred by her was far fetched, it could not be believed. It has also been  

submitted that the medical evidence which could be a corroborating factor,  

too was uncertain, as Dr. Kalpana Ravi had stated that the factum of rape  

could not be ascertained. The learned counsel has finally emphasised that  

the  defence  version  that  the  appellant  had  reached  the  house  of  the  

prosecutrix to recover his cow and in a quarrel between them that followed,  

both had suffered injuries and that he had thereafter been falsely implicated  

in a case of rape. To highlight this argument, the learned counsel has referred  

us to the medical evidence of Dr. S.B. Khare (PW-6).

Mr.  C.D.  Singh,  the  learned  counsel  for  the  respondent  State  has  

however submitted that the prosecutrix case was liable to be believed and  

has relied upon the judgment of this court in in [Motilal vs. State of Madhya

Pradesh] 2008 SCC (Vol.11) 20. It has also been submitted that the evidence  

clearly showed that the appellant had been arrested from the house of the  

prosecutrix which proved the factum of rape.

We have heard the learned counsel for the parties at length. We find that  

this case is rather an unusual one. The fact that the appellant was in the  

house of the prosecutrix is admitted on both sides. The prosecution story that  

the appellant a young man of 31 years had been overpowered by a much  

older  woman  is  rather  difficult  to  believe.  The  injuries  received  by  the  

appellant are given below :-

1. Parted wound, whose shape is 1.5 c.m. X 1/5 c.m. on the right side  

of the hand.

2. Swelled injury, whose shape is 1.5 c.m. X 1 inch, which is on the  

upper side of the right hand.

3. Swelled injury, whose shape is 1/2" X 1/2", which is on the elbow of  

the left hand.

The injury of accused are given below :-

1. Parted wound, whose shape is 1 ½ inch X 1/2 c.m. X 1 c.m. on the  

middle of the head.

2. Parted wound, whose shape is 1" X 1/2 c.m. X 3 m.m. on the front  

side of the head.

3. Parted wound, whose shape is 1/2" X 1/2" c.m. X 3 m.m. on the  

right of the head.

4. Swelled injury, whose shape is 1/2" X 1/2".

5. Swelled injury, whose shape is 1" X 1/2" on the chin.

6. Two central incisers tooth and right canine tooth of upper jaw were  

broken and the enamles were swelled.

Injury No. 6 is a grievous one. As per the prosecutrix she had caused  

these injuries to the appellant during the time of rape and thereafter that the

accused had caused her three minorinjuries as well whereas the case of the  

appellant is that he had gone to her house to recover his cow and in a quarrel  

that  followed both  had received injuries.  In  any case as  the  investigating  

officer had not verified the statement of the appellant some corroboration for  

the prosecutrix’s story was required. As already mentioned, her son Babulal  

and Shivbalak, a relative, who had reached the place of incident, were both  

declared hostile and did not support the prosecutrix. We find that even her  

husband Sampat who had accompanied her to the police station to lodge the  

report did not come into the witness box and the doctor was also unable to  

confirm the factum of rape.

Mr. C.D. Singh has however placed reliance on Moti Lal’s case (supra) to  

contend that the evidence of the prosecutrix was liable to be believed save in  

exceptional circumstances. There can be no quarrel with this proposition (and  

it has been so emphasised by this Court time and again) but to hold that a  

prosecutrix must be believed irrespective of the improbabilities in her story, is  

an argument that can never be accepted. The test always is as to whether the  

given story prima facie inspires confidence. We are of the opinion that the  

present matter is indeed an exceptional one.

As already mentioned above, in our opinion, the story given by the prosecutrix  

does not inspire confidence. We thus allow this appeal, set aside the impugned  

judgments and direct that the appellant be acquitted.