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PETITIONER: KARNEL SINGH

       Vs.

RESPONDENT: THE STATE OF M.P.

DATE OF JUDGMENT11/08/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SEN, S.C. (J)

CITATION:  1995 AIR 2472            1995 SCC  (5) 518  JT 1995 (6)   437        1995 SCALE  (4)752

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Ahmadi, CJI      Special leave granted.      The appellant  challenges his  conviction under Section 376, IPC,  and the  sentence and  fine imposed  on him.  The facts leading  to the  conviction, briefly  stated, are that the prosecutrix  (PW 1)  Panchbai, was  working at a factory where she  had reported for duty on the morning of 28.8.1987 around 8.00 a.m. Her job was to lift boulders and place them within the  factory premises.  While she  was working inside the factory,  another labourer  by the  name Charan was also present. The  appellant and  his companion Pyaru came to the factory premises,  asked Charan  to fetch  tea  and  on  his departure the  appellant lifted  her  bodily  and  took  her inside the machine room, placed her on the ground, undressed her from  below the  waist and  had sexual  intercourse with her. Pyaru,  since acquitted,  was asked  to  keep  a  watch outside the  factory. According to the prosecution after the appellant had satisfied his lust and before Pyaru could take his turn  the prosecutrix  ran through  the opening  in  the compound wall  of  the  factory,  searched  her  husband,  a rickshaw puller, and thereafter lodged the First Information Report (Ex.P-1).  She was  sent to  the Hospital for medical examination where  PW2 -  Dr.(Smt.) s.  Rajpoot examined her and prepared  the Report  (Ex.P-3). Her  evidence  has  been recorded in  brief to  the  effect  that  she  examined  the prosecutrix on  that very night at about 9.00 p.m. and found that she  was habituated  to sexual  intercurse. She did not find any  marks of  injury or  struggle on the person of the prosecutrix.  However,   her  Saya   (Petticoat)  which  was attached earlier  in point  of time  and shown  to her  bore semen stains.  In her  cross-examination she stated that she did not  see  any  signs  of  forcible  intercourse  on  the prosecutrix and  was, therefore,  not in  a position  to say whether or  not she  was the  victim of rape. The garment of

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the prosecutrix  was got  examined by the Chemical Analyser, which examination  confirmed the  existence of semen stains. The prosecutrix  in her evidence has stated that immediately after she  ran from the place of occurrence she met one Reza Multanabai, a  co-labourer, and narrated to her the incident before going in search of her husband. Thus, at the earliest point of time she narrated incident to the aforesaid person, but unfortunately  that person was not cited and examined as a witness,  nor was Charan produced as a witness. Thus, both these witnesses  who could have corroborated the prosecutrix were not examined. In the course of investigation the under- garment (Chaddi)  of the  accused is  stated  to  have  been recovered. Dr.R.D.  Sharma noted  semen like  stains on  the garment  and   advised  its   examination  by  the  Chemical Analyser. The seizure of the ‘Chaddi’ was, however, held not proved. Surprisingly,  the  Investigating  Officer  has  not uttered a word about the seizure of this article. Therefore, this important  piece of  evidence on  which the  prosection sought to  rely is  of no avail to it. The vaginal swabs had semen stains. This is the state of evidence.      The learned  counsel for the appellant-accused strongly urged that  the investigation  leaves much to be desired and the prosecution  evidence does  not carry  the  case  beyond suspicion. He  stated that the two independent witnesses who could have  corroborated the  prosecutrix have,  for reasons best known  to the  prosecution,  not  been  called  to  the witness stand.  The story  regarding  the  recovery  of  the ‘Chaddi’  with   semen  stains   is  a  concoction  and  the prsecution  could   not   prove   its   recovery.   In   the circumstances he  contended that the courts below were wrong in holding  the case  proved beyond  reasonable  doubt.  He, therefore, urged  that the  conviction is  unsustainable and the appeal must be allowed.      We have  very carefully secutinized the evidence having regard to  the fact that (PW6) the investigation officer had not taken  the care  expected of  him. He did not record the statements of  the two  witnesses nor  did he  refer to  the attachment of  the ‘Chaddi’ in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid.  If the  seizure  of  that  article  was  properly proved, the article with semen stains would have lent strong corroboration to  the evidence  of the prosecutrix. There is no doubt  that the  investigation was  casual and defective. But despite  these deficiencies  both the  courts below have recorded a conviction. The question is: are they right?      Notwithstanding our unhappiness regarding the nature of investigation, we  have to  consider whether the evidence on record, even  on strict  scrutiny, establishes the guilt. In cases  of  defective  investigation  the  court  has  to  be circumspect in  evaluating the  evidence but it would not be right in  acquitting an  accused person solely on account of the defect;  to do  so would  tantamount to playing into the hands of  the investigating  officer if the investigation is designedly defective. Any investigating officer, in fairness to the  prosecutrix as  well  as  the  accused,  would  have recorded the  statements the statements of the two witnesses and would  have drawn  up a proper seizure-memo in regard to the ‘Chaddi’.  That is  the reason why we have said that the investigation was slip shod and defective.      We must  admit that the defective investigation gave us some anxious  moments and we were at first blush inclined to think  that  the  accused  was  prejudiced.  But  on  closer scrutiny we  have reason  to think that the loopholes in the investigation were  left to  help the accused at the cost of the poor  prosecutrix, a  labourer. To acquit solely on that

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ground would be adding insult to injury.      We  have   carefully  examined   the  evidence  of  the prosecutrix, the medical evidence of her examination and the evidence of the investigating officer and we are inclined to think there  is no risk involved in accepting the version of the prosecutrix.  Her evidence shows that she had joined the two accused persons hardly three days before the incident as a labourer  under a  contractor. She  was, therefore, in not too familiar  an environment. She was the only female worker just out  of her teens. Besides, the two accused persons and the prosecutrix there was one more person by the name Charan who was  sent away  to fetch  tea. Taking  advantage of  the prosecutrix being  alone  in  their  company  the  appellant picked her up and took her inside the machine room, laid her on a  pile of sand, removed her saree and petticoat, and had sexual intercourse  with her  against her wish. After he had satisfied his  lust, he  called his companion but before the latter could  have  her,  she  ran  away  and  narrated  the incident to  Multanabai and  then  went  in  search  of  her husband, a  rickshaw puller. After narrating the incident to him, both  of them went to the police station and lodged the complaint, Exhibit  P.1, at about 4.10 p.m. It was said that there  was   considerable  delay  and  sufficient  time  for tutoring and  therefore her evidence could not be belivered. There  is  no  merit  in  this  contention.  The  submission overlooks the fact that in India women are slow and hesitant to complain  of such assaults and if the prosecutrix happens to be  a married  person she  will not  do anything  without informing her  husband. Merely  because  the  complaint  was lodged less  than promptly does not raise the inference that the complaint  was false. The reluctance to go to the police is because  of society’s  attitude towards  such  women;  it casts doubt  and shame  upon her  rather  than  comfort  and sympathise with  her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.  The possibility  of tutoring is ruled out because the evidence  does  not  show  that  her  husband  knew  the appellant and his companion before the incident. She too had started work  hardly three days before and therefore she had no reason  to falsely  involve the appellant. No such reason is even  suggested. She  was a  poor  labourer  hired  by  a contractor just  a few  days back and had no enmity with the appellant and  his companion.  Nor is there any such history so far  as her husband is concerned. There is, therefore, no reason to  doubt her  word. As for corroboration the find of semen  stains   on  her  ‘saya’  and  in  her  vagina  lends sufficient  assurance   to  her   accusation.  In  State  of Maharashtra v.  Chandraprakash Kewal Chand Jain (1990) 1 SCC 550, this Court speaking through one of us (Ahmadi,J) had an occasion to  point out  that a  woman who  is a  victim of a 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. She  is not  in the  category of  a child witness or  an accomplice and therefore the rule of prudence that  her   evidence  must   be  corroborated   in  material particulars has  no application,  at the  most the court may look for some evidence which lends assurance.      This is  what this  Court said  in paragraph  16 of the judgment in the aforementioned case:      "A prosecutrix  of a  sex offence cannot      be put on par with an accomplice. She is      in fact  a  victim  of  the  crime.  The      Evidence  Act   nowhere  says  that  her      evidence cannot be accepted unless it is

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    corroborated  in  material  particulars.      She is  undoubtedly a  competent witness      under Section  118 and her evidence must      receive the  same weight  as is attached      to  an  injured  in  cases  of  physical      violence. The  same degree  of care  and      caution must attach in the evaluation of      her  evidence  as  in  the  case  of  an      injured complainant  or witness  and  no      more. What  is  necessary  is  that  the      court must  be alive to and conscious of      the fact  that it  is dealing  with  the      evidence of  a person  who is interested      in the outcome of the charge levelled by      her. If the court keeps this in mind and      feels satisfied  that it  can act on the      evidence of the prosecutrix, there is no      rule of  law or practice incorporated in      the Evidence Act similar to illustration      (b) 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  her      evidence." Applying the  above test to the facts of the present case we are  satisfied   beyond  any   manner  of   doubt  that  the prosecutrix, a victim of the crime, had absolutely no reason whatsoever to  falsely involve  the appellant  nor  did  her husband have  any reason  to do  so or  tutor  his  wife  to involve the  appellant. No  such suggestion  was made to the prosecution witnesses  in cross examination nor is there any evidence on record in that behalf. The prosecutrix is a poor labourer who  was toiling  to earn her livelihood to augment the family  income. She was working in the factory since the last few  days only  and the  appellant and  his  companion, taking advantages  of the  situation, drove  away Charan  by asking him  to fetch  tea and  after he  left the  appellant voilated her  person.  The  find  of  semen  stains  on  the petticoat and  in the  vagina lend  assurance to  the  story narrated by  the prosecutrix.  The submission that there was delay in  lodging the  complaint has  to  be  stated  to  be rejected for  the simple  reason that  immediately after the incident she  had to  go in  search of her husband who was a Rickshaw Puller, narrate to him the incident, go down to the police  station  and  then  lodge  the  complaint.  She  has explained the  absence of  injuries by  stating that she was

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laid on  minute sand  which was  lying  on  the  floor  and, therefore,  there   were  no   marks  of  injury.  The  only explanation is by way of suggestion in the cross-examination of the  prosecutrix to  the  effect  that  she  was  falsely implicating the appellant in order to grab money. Therefore, taking an  overall view  of the matter we are satisfied that it is  safe to  place  reliance  on  the  testimony  of  the prosecutrix. Both  the courts  below relied  on her evidence and we see no reason to take a different view.      For the above reason we see no merit in this appeal and dismiss the same.