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CASE NO.: Appeal (crl.)  624 of 2005

PETITIONER: Radhu

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 14/09/2007

BENCH: R. V. Raveendran & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       In this appeal by special leave by the accused, the judgment of the   High Court of Madhya Pradesh dated 12.9.2003 in Criminal Appeal No. 270  of 1993, affirming the judgment dated 25.5.1993 in Sessions Trial  No.127/1991 passed by the II Additional Sessions Judge, Khargone,  convicting and sentencing the accused under sections 376, 323 and 342/34,  is under challenge.  

2.      In brief the prosecution case is as follows :  On 28.1.1991 at about 8  p.m., prosecutrix Sumanbai, went to a shop for purchasing some groceries.  On her way to the shop, Gyarsibai, a relative, invited her to come inside her  house. When she entered Gyarsibai’s house, her son Radhu who was in the  room came out, dragged her inside the room and confined her in the room  during the entire night. During the night, he sexually assaulted her by  inserting his penis in her vagina twice. When she cried, Radhu gagged her  mouth with a piece of cloth. Radhu freed her only the next day (Tuesday)  morning. She went back to her house and told her mother Lalithabai (PW-4)  about the incident. As her father Mangilal (PW-7) had gone out of town, her  mother sent Dinesh to inform him about the incident. When her father  returned on 30.1.1991, she along with her father went from their village  Umarkhali to Barud where they met their relative Ram Lal and his wife and  Gulabbai (PW-5) and she told Ramlal about the incident. Thereafter, they  also accompanied her and her father to the Barud Police Station where her  oral report was recorded by the officer in charge of the Police Station (PW9)  as a First Information Report (Ex.P5).  

3.      Sumanbai was sent to Dr. Vandana (PW-8), a lady surgeon in the  Main Hospital, Khargone for examination. She examined her and recorded  her findings as per Ex. P8. She also advised x-ray to decide her age. On  1.2.1991 an x-ray was taken by Dr. Khan (PW-1) who gave a report (Ex.P-1)  opining that Sumanbai was aged between 13 to 14 years. The Investigating  Officer (PW-9) took up investigation and prepared a site plan P-10. Radhu  was arrested on 19.2.1991 and sent to Khargone Hospital for medical  examination. Dr. Sanjay Kumar Bhat (PW-2), examined him and opined that  Radhu was aged about 19 years and capable of sexual intercourse. His  mother Gyarsibai was also arrested. Radhu was charged to stand trial for  offences under sections 342/34, 376 and 323 IPC. His mother was charged  under section 342/34 and 376/34 IPC. Eleven witnesses were examined.  After appreciating the evidence, the trial court by judgment dated 25.5.1993  found the accused 1 and 2 guilty and sentenced them to seven years  imprisonment with fine of Rs.500 and in default to a further period of six  months RI under, section 376 and 376/109 IPC respectively. They were also  sentenced to six months RI under section 342/34 IPC. In addition, Radhu  was sentenced to six months RI under section 323 IPC. All sentences were

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to run concurrently.  

4.      Feeling aggrieved the two accused filed an appeal before the High  Court. During the pendency of the appeal Gyarsibai died. The High Court by  judgment dated 12.9.2003 dismissed the appeal, affirming the conviction  and sentence of the first accused Radhu. In this appeal, challenging the said  decision, the learned counsel for the appellant urged the following  contentions:

(i)     The accused were falsely implicated by Sumanbai at the instance of  her father who was indebted to Radhu’s father Nathu, to avoid repayment of  the debt.              

(ii)    The medical evidence showed that there was no injury on the private  parts of Sumanbai and that the rupture of hymen was old. The Doctor (PW- 8) also stated that she could not express any opinion as to whether a rape had  been committed or not.

(iii)   The discrepancies in the evidence, absence of corroboration, the close  relationship (the prosecutrix described Radhu as her maternal uncle, as  Radhu’s parents were Kaka and Baba of Sumanbai’s mother) and the manner  in which the incident is alleged to have taken place, clearly demonstrated  that it was a false charge.

       On the other hand, the learned counsel for the State submitted the  concurrent findings recorded by the trial court and High Court were based  on the evidence of the prosecutrix and that no corroboration was required  when the testimony of the prosecutrix was clear and convincing. She also  pointed out the prosecutrix (PW 3), her mother (PW4) and father (PW7) had  denied any indebtedness to Radhu’s faher and there was nothing to show that  the prosecutrix had falsely implicated the accused. It was submitted that this  Court while exercising jurisdiction under Article 136 of the Constitution will  not interfere with the findings of fact recorded by the lower courts, unless  the decision appealed from, shocked the judicial conscience of the court.    5.      It is now well settled that a finding of guilt in a case of rape, can be  based on the uncorroborated evidence of the prosecutrix. The very nature of  offence makes it difficult to get direct corroborating evidence. The evidence  of the prosecutrix should not be rejected on the basis of minor discrepancies  and contradictions. If the victim of rape states on oath that she was forcibly  subjected to sexual intercourse, her statement will normally be accepted,  even if it is uncorroborated, unless the material on record requires drawing  of an inference that there was consent or that the entire incident was  improbable or imaginary. Even if there is consent, the act will still be a  ’rape’, if the girl is under 16 years of age. It is also well settled that absence  of injuries on the private parts of the victim will not by itself falsify the case  of rape, nor construed as evidence of consent. Similarly, the opinion of a  doctor that there was no evidence of any sexual intercourse or rape, may not  be sufficient to disbelieve the accusation of rape by the victim. Bruises,  abrasions and scratches on the victim especially on the forearms, writs, face,  breast, thighs and back are indicative of struggle and will support the  allegation of sexual assault. The courts should, at the same time, bear in  mind that false charges of rape are not uncommon. There have also been rare  instances where a parent has persuaded a gullible or obedient daughter to  make a false charge of a rape either to take revenge or extort money or to get  rid of financial liability. Whether there was rape or not would depend  ultimately on the facts and circumstances of each case.

6.      Sumanbai (PW-3) stated in her evidence that when she entered the hut  of Gyarsibai responding to her invitation, Radhu who was inside the hut,  shut the door and forcibly committed rape by inserting his penis twice; that  when she started crying, Radhu gagged her with cloth and kept her confined  in the room during the night and released her only the next day morning; and  that thereafter she went and informed her mother as to what happened. This

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version is in consonance with her report of the incident  recorded in the FIR  (Ex.P5) which was read over and accepted by her in her evidence. Lalithabai  (PW-4) stated that when her daughter returned on Tuesday morning and told  her that Radhu had raped her by force the whole night. Significantly, the  prosecutrix, in her cross-examination, has given a completely different  version. She stated that when Radhu committed the ’bad’ act by inserting his  penis twice, she fainted and remained unconscious throughout the night; that  she came back to her senses only the next day morning; that she did not  know what happened during the night; that when she regained consciousness  and walked out of the place, Radhu was present but Gyarsibai was  elsewhere. She also asserted that she told the police that she had become  unconscious when the ’bad’ act was committed. If she lost consciousness  when the alleged act was committed, and if she regained consciousness only  the next morning and left the house of Gyarsibai without any obstruction, the  prosecution case that the prosecutrix was gagged by Radhu, that the  prosecutrix was confined in his house during the entire night by use of force  by Radhu, that she was freed by Radhu only the next morning, becomes  false.  

7.      In her examination-in-chief, Sumanbai categorically stated that  Gyarsibai called her to her house when she was going to the shop of Sony  for buying sugar and tea. In her oral report of the incident registered as FIR  (Ex.P5), she had stated that she went to Gyarsibai’s house, while on the way  to the shop. But in the cross-examination, she stated that Gyarsibai called  her when she was coming back from the shop after purchasing tea and sugar.  She also stated that she could not tell the value of the goods purchased by  her at that time. Thus, the prosecution case that the incident occurred when  she was going to the shop to purchase tea and sugar is not proved.  

8.      Sumanbai stated that the incident took place on Monday night, that  she returned on Tuesday morning and her father returned on Wednesday,  that she and her father went to the house of Gulabbai and Ram Lal at Barud  and she narrated the incident to Ramlal, that Ramlal also accompanied them  to the Barud Police Station. Sumanbai’s mother Lalita Bai (PW4) also stated  that on Wednesday her husband took their daughter Sumanbai to Barud  Police Station, and that after returning from the Police Station, her husband  told her that they had also taken her brother Ram Lal, who resided at Barud,  to the Police Station. Mangilal (PW-7) father of Sumanbai, did not mention  about Ram Lal or his wife Gulabbai in his examination in chief. However, in  his cross-examination, he stated that he went to the house of his relative  Ramlal at Barud and Ramlal accompanied them to the police station. But,  Ram Lal was not examined. Ram Lal’s wife Gulab Bai, examined as PW-5,  was declared hostile and she denied that Mangilal and Sumanbai visited their  house and informed them about the incident. She also stated that neither she  nor her husband accompanied Sumanbai to the Police Station. Therefore the  prosecution case that Sumanbai and her father informed Ramlal about the  incident on 30.1.1991 appears to be doubtful.

9.      Sumanbai’s mother Lalithabai states that when Sumanbai did not  return on Monday night, she and her son-in-law Ramesh searched for her up  to 3 a.m. on Tuesday morning. In her cross-examination, she stated that she  searched for Sumanbai in the village, and that she also asked Gyarsibai   about Sumanbai. In the cross-examination, she stated that she did not  remember whose houses she went to enquire about her daughter, and that  she did not remember whether she had gone to anyone’s house at all.   Lalithabai further stated that she told her son-in-law Ramesh about the  incident and asked him to go to Chacharia to inform her husband about the  incident and to bring him back. Mangilal also said his son-in-law came and  informed him about the incident. Sumanbai stated that her brother-in-law  was sent to bring back her father; that her brother-in-law’s name is Ramesh  but the SHO wrongly wrote his name as Dinesh in the FIR.  Significantly,  Dinesh or Ramesh, brother-in- law of Sumanbai was not examined to  corroborate that there was a search for Sumanbai on the night of 28.1.1991  or that he was appraised about the incident by his mother-in-law on  29.1.1991 and that he went and informed his father-in-law about the

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incident.

10.     Thus the two persons (other than the parents) who were allegedly  informed about the incident namely Ramesh (on 29.1.1991) and Ramlal (on   30.1.1991) were not examined and consequently there is no corroboration.

11.     Dr. Vandana (PW-8) stated that on examination of Sumanbai, she  found that her menstrual cycle had not started and pubic hair had not  developed, and that her hymen was ruptured but the rupture was old. She  stated that there were no injuries on her private parts and she could not give  any opinion as to whether any rape had been committed. These were also  recorded in the examination Report (Ex. P8). She, however, referred to an  abrasion on the left elbow and a small abrasion on the arm and a contusion  on the right leg, of Sumanbai. She further stated that she prepared two  vaginal swabs for examination and handed it over along with the petticoat of  Sumanbai to the police constable, for being sent for examination. But no  evidence is placed about the results of the examination of the vaginal swabs  and petticoat. Thus, the medical evidence does not corroborate the case of  sexual intercourse or rape.   

12.     We are thus left with the sole testimony of the prosecutrix and the  medical evidence that Sumanbai had an abrasion on the left elbow, an  abrasion on her arm and a contusion on her leg. But these marks of injuries,  by themselves, are not sufficient to establish rape, wrongful confinement or  hurt, if the evidence of the prosecutrix is found to be not trustworthy and  there is no corroboration.  

13.      Lalithabai says that when Sumanbai did not return, she enquired with  Gyarsibai. Sumanbai also says that she used to often visit the house of  Gyarsibai. She says that Radhu’s parents are kaka and baba of her mother  and Radhu was her maternal uncle. The families were closely related and  their relationship was cordial. In the circumstances, the case of the  prosecution that Gyarsibai would have invited Sumanbai to her house to abet  her son Radhu to rape Sumanbai and that Gyarsibai was present in the small  house during the entire night when the rape was committed, appears to be  highly improbable in the light of the evidence and circumstances.  

14.     The FIR states that one Dinesh was sent by Lalithabai to fetch her  husband. Lalitabai and Mangilal have stated that they did not know anyone  by the name Dinesh. Sumanbai stated in her evidence that on 29.1.1991, as  her father was away, her brother-in-law went to bring back her father, that  the name of her brother-in-law is Ramesh, but the SHO wrongly wrote his  name as ’Dinesh’. But none else mentioned about such a mistake. Neither  Ramesh nor Dinesh was examined.  

15.     The evidence of the prosecutrix when read as a whole, is full of  discrepancies and does not inspire confidence. The gaps in the evidence, the  several discrepancies in the evidence and other circumstances make it highly  improbable that such an incident ever took place. The learned counsel for the  respondent submitted that defence had failed to prove that Mangilal, father  of prosecutrix was indebted to Radhu’s father Nathu and consequently,  defence of false implication of accused should be rejected. Attention was  invited to the denial by the mother and father of the prosecutrix, of the  suggestion made on behalf of the defence, that Sumanbai’s father Mangilal  was indebted to Radhu’s father Nathu and because Nathu was demanding  money, they had made the false charge of rape, to avoid repayment. The fact  that the defence had failed to prove the indebtedness of Mangilal or any  motive for false implication, does not have much relevance, as the  prosecution miserably failed to prove the charges. We are satisfied that the  evidence does not warrant a finding of guilt at all, and the Trial Court and  High Court erred in returning a finding of guilt.   

16.     We, therefore, allow the appeal, set aside the judgments of the courts  below and acquit the accused of all charges.