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CASE NO.: Appeal (crl.)  8 of 1998

PETITIONER: State of M.P.

RESPONDENT: Dayal Sahu

DATE OF JUDGMENT: 29/09/2005

BENCH: H.K. SEMA & G.P.MATHUR

JUDGMENT: J U D G M E N T                                  

H.K.SEMA,J

       The respondent-accused Dayal Sahu was put to trial under Section  376 IPC.  He was convicted by the Trial Court and sentenced to seven years  imprisonment and a fine of Rs.500/-, in default three months’ rigorous  imprisonment.   The High Court, on appeal preferred by the accused, set- aside the conviction recorded by the Trial Court and acquitted the accused  (respondent herein) solely on the ground for non-examination of PW-9 Dr.  V.M. Pursule, as according to the High Court, non-examination of PW-9  prejudiced the case of the accused for non-providing of an opportunity to the  accused to cross-examine the doctor.  Being aggrieved, this appeal is  preferred by the State of Madhya Pradesh by special leave.           Briefly stated the facts of the prosecution case are as follows:-

       In the night of 1.4.1991 the accused-respondent Dayal Sahu who was  a relative of complainant came to the village Mandvi with another man  Jagdish as guests.  The prosecutrix-Santribai, wife of PW-2 Ramdas was  sleeping inside the house.  Other family members were sleeping outside the  house with guests.  At about 4.00 A.M. the accused entered into the room of  prosecutrix in the guise of her husband and committed rape upon her by  removing all her clothes.    On query by the prosecutrix as who he was, the  accused pressed her mouth; only then the prosecutrix came to know that the  man who had intercourse with her was not her husband.  Thereafter, she  awakes her husband and other members.  The husband of prosecutrix  entered the room and lit lantern and found the accused Dayal Sahu present  there.  The accused made a confessional statement for avoiding any event of  demoral nature and to avoid an apprehension of beating.   The matter was  reported to the Kotwar of the village, who took the prosecutrix to the police  station and reported the matter on 1.4.1991 itself wherein the fact was  recorded regarding the commission of rape with Santribai.         The prosecution examined as many as 14 witnesses.  Amongst others,  the prosecutrix-Santribai was examined as PW-1.  Ramdas, the husband of  the prosecutrix was examined as PW-2.  Puslibai, the mother-in-law of the  prosecutrix was examined as PW-3, who was declared hostile by the Trial  Court.  She was cross-examined by Public Prosecutor, when she admitted  that she is hard of hearing.  Deorao Kotwar, who took the prosecutrix to the  police station and got the report lodged, was examined as PW-4.  Chindhiye,  the father-in-law of the prosecutrix was examined as PW-5.  Dr.V.M.  Pursule, who examined the accused and on examination of his private parts  found that the accused was healthy and capable of committing sexual  intercourse, was examined as PW-9.   It appears that the prosecutrix was also  medically examined by a lady doctor and her slide, pubic hair, saree,  underwear and petticoat, which she was wearing at the time of incident, had  been sent to F.S.L. Sagar for examination.  The report of F.S.L. was also  received vide Ex.P.8 and Ex.P.9.  According to the report, white and hard  stains were found on the underwear of the accused and on the saree and

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petticoat of the prosecutrix.  As per Ex.P-9 report, stains of semen and  sperms were found on the underwear of accused.           Considering the fact that the point involved in this appeal is within a  narrow compass, it is not necessary to recite entire facts, which are admitted  by the Trial Court and confirmed by the High Court.      

       In this case, the Trial Court examined the evidence of the P.W.1- prosecutrix, P.W.2-husband, P.W.4-Deorao Kotwar and P.W.5- father in law  and came to a conclusion that their testimony inspires confidence and  recorded the conviction as aforesaid.  As would appear from the judgment of  the High Court four contentions have been raised by the respondent herein  before the High Court.  These are:- (1)     That it is a case of high degree contradiction between  the statements of PW-1, 4 and 5 on account of which  the prosecution version becomes doubtful.  

(2)     The prosecutrix was medically examined but the  doctor who examined her did not come in the witness  box to prove the report or the prosecution did not take  care to examine the doctor.

(3)     Serologist’s report is on the record but the same was  not proved.  

(4)     Prosecution witnesses were not reliable.  

The first contention has been repelled by the High Court as under:-

"So far as the first point is concerned, regarding  contradictions between the statements of PW-1, PW-4,  and PW-5 are concerned, they are very minor and such  contradictions in the case of the nature cannot be given  any weightage.  The trial Court has considered this aspect  and I find no reason to disagree with the findings  recorded by the trial court.  

Contention No.3, the High Court has answered as under:-

"So far as the Serologist’s report is concerned, that report  is on record as Exs. P-8 and P-9."         Contention No.4 has also been repelled by the High Court as under:-

"The submission that the prosecution witnesses were not  reliable is without any substance.  The only thing which  creates a doubt regarding the defence version was not  accepted as the father of the appellant Ranglal (DW-1)  was a labourer and there is no explanation as to why this  person took a sum of Rs.10,000/- to the house of the  prosecutrix which was not explained and it was also not  explained as to wherefrom that money was obtained.   Moreover, a labourer is not supposed to be in possession  of such an amount.  The medical report is proved by Shri  S.R. Choudhary, Assistant sub Inspector of Police, who  conducted the investigation but this by itself is not  sufficient as the accused-appellant was deprived of an  opportunity to cross-examine the doctor who conducted  the medical examination but did not enter the witness box  to give evidence.  Even the report which is on the record,  mentions that no definite opinion can be given regarding  commission of rape.  I think it is a case where the  appellant is entitled for benefit of doubt."             

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       Regarding contention No.2 - non-examination of a lady doctor who  medically examined the prosecutrix-PW.1, the High Court was of the  opinion that non-examination of doctor and non-providing of an opportunity  to the accused-person to cross-examine the doctor is a fatal one and is a  great lacuna in the prosecution case. On the basis of this view, the High  Court acquitted the accused on benefit of doubt.          The view taken by the High Court, in our view, is perverse, erred in  law as well as on fact and contrary to the established law laid down by this  Court in a catena of decisions.   The High Court having accepted the  statements of P.Ws.1, 2, 4 and 5 as having inspired confidence yet acquitted  the accused by giving him benefit of doubt in an offence of rape.                   In the case of State of Punjab    vs.   Gurmit Singh, (1996) 2 SCC  384, it has been held that a conviction can be founded on the testimony of  prosecutrix alone unless there are compelling reasons for seeking  corroboration.  It is further held that her evidence is more reliable than that  of an injured witness.     It was pointed out in paragraph 8 at scc pp.395-396 as under: -

"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.  The inherent bashfulness of the  females and the tendency to conceal outrage of sexual  aggression are factors which the courts should not overlook.   The testimony of the victim in such cases is vital and unless  there are compelling reasons which necessitate looking for  corroboration of her statement, the courts should find no  difficulty to act on the testimony of a victim of sexual assault  alone to convict an accused where her testimony inspires  confidence and is found to be reliable.  Seeking corroboration  of her statement before relying upon the same, as a rule, in such  cases amounts to adding insult to injury.  Why should the  evidence of a girl or a woman who complains of rape or sexual  molestation, be viewed with doubt, disbelief or suspicion?  The  court while appreciating the evidence of a prosecutrix may look  for some assurance of her statement to satisfy its judicial  conscience, since she is a witness who is interested in the  outcome of the charge leveled by her, but there is no  requirement of law to insist upon corroboration of her statement  to base conviction of an accused.  The evidence of a victim of  sexual assault stands almost on a par with the evidence of an  injured witness and to an extent is even more reliable.  Just as a  witness who has sustained some injury in the occurrence, which  is not found to be self-inflicted, is considered to be a good  witness in the sense that he is least likely to shield the real  culprit, the evidence of a victim of a sexual offence is entitled  to great weight, absence of corroboration notwithstanding.   Corroborative evidence is not an imperative component of  judicial credence in every case of rape.  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.  It must not be overlooked  that a woman or a girl subjected to sexual assault is not an  accomplice to the crime but is a victim of another person’s lust  and it is improper and undesirable to test her evidence with a  certain amount of suspicion, treating her as if she were an  accomplice.  Inferences have to be drawn from a given set of  facts and circumstances with realistic diversity and not dead  uniformity lest that type of rigidity in the shape of rule of law is

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introduced through a new form of testimonial tyranny making  justice a casualty.  Courts cannot cling to a fossil formula and  insist upon corroboration even if, taken as a whole, the case  spoken of by the victim of sex crime strikes the judicial mind a  probable".   In the case of Sheikh Zakir   vs.    State of Bihar, (1983) 4 SCC 10,  in paragraph 8 at scc p.18 it has been held:- "Insofar as non-production of a medical examination report and  the clothes which contained semen, the trial court has observed  that the complainant being a woman who had given birth to  four children it was likely that there would not have been any  injuries on her private parts.  The complainant and her husband  being persons belonging to a backward community like the  Santhal tribe living a remote area could not be expected to  know that they should rush to a doctor.  In fact the complainant  has deposed that she had taken bath and washed her clothes  after the incident.  The absence of any injuries on the person of  the complainant may not by itself discredit the statement of the  complainant. Merely because the complainant was a helpless  victim who was by force prevented from offering serious  physical resistance she cannot be disbelieved.  In this situation  the non-production of a medical report would not be of much  consequence if the other evidence on record is believable.  It is,  however, nobody’s case that there was such a report and it had  been withheld."      

In the case of Ranjit Hazarika   vs.   State of Assam (1998) 8 SCC  635, it was pointed out in paragraph 5 at scc.p 637 as under:- "The argument of the learned counsel for the appellant that the  medical evidence belies that testimony of the prosecutrix and  her parents does not impress us.  The mere fact that no injury  was found on the private parts of the prosecutrix or her hymen  was found to be intact does not belie the statement of the  prosecutrix as she nowhere stated that she bled per vagina as a  result of the penetration of the penis in her vagina.  She was  subjected to sexual intercourse in a standing posture and that  itself indicates the absence of any injury on her private parts.   To constitute the offence of rape, penetration, however slight, is  sufficient.  The prosecutrix deposed about the performance of  sexual intercourse by the appellant and her statement has  remained unchallenged in the cross-examination.  Neither the  non-rupture of the hymen nor the absence of injuries on her  private parts, therefore, belies the testimony of the prosecutrix  particularly when we find that in the cross-examination of the  prosecutrix, nothing has been brought out to doubt her veracity  or to suggest as to why she would falsely implicate the  appellant and put her own reputation at stake.  The opinion of  the doctor that no rape appeared to have been committed was  based only on the absence of rupture of the hymen and injuries  on the private parts of the prosecutrix.  This opinion cannot  throw out an otherwise cogent and trustworthy evidence of the  prosecutrix.  Besides, the opinion of the doctor appears to be  based on "no reasons".     

       In the case of State of Rajasthan   vs.   N.K, the accused (2000) 5  SCC 30, it was pointed out in paragraph 9 at scc p.38 as under:- "Having heard the learned counsel for the parties we are of the  opinion that the High Court was not justified in reversing the  conviction of the respondent and recording the order of  acquittal.  It is true that the golden thread which runs  throughout the cobweb of criminal jurisprudence as  administered in India is that nine guilty may escape but one  innocent should not suffer.  But at the same time no guilty  should escape unpunished once the guilt has been proved to

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hilt.  An unmerited acquittal does no good to the society.  If the  prosecution has succeeded in making out a convincing case for  recording a finding as to the accused being guilty, the court  should not lean in favour of acquittal by giving weight to  irrelevant or insignificant circumstances or by resorting to  technicalities or by assuming doubts and given benefit thereof  where none exists.  A doubt, as understood in criminal  jurisprudence, has to be a reasonable doubt and not an excuse  for a finding in favour of acquittal.  An unmerited acquittal  encourages wolves in the society being on the prowl for easy  prey, more so when the victims of crime are helpless females.   It is the spurt in the number of unmerited acquittals recorded by  criminal courts which gives rise to the demand for death  sentence to the rapists.  The courts have to display a greater  sense of responsibility and to be more sensitive while dealing  with charges of sexual assault on women.  In Bharwada  Bhoginbhai Hirjibhai  v.  State of Gujarat (1983) 3 SCC 217,  this Court observed that refusal to act on the testimony of a  victim of sexual assault in the absence of corroboration as a  rule, is adding insult to injury.  This Court deprecated viewing  evidence of such victim with the aid of spectacles fitted with  lenses tinted with doubt, disbelief or suspicion."       

       A plethora of decisions by this Court as referred to above would show  that once the statement of prosecutrix inspires confidence and accepted by  the courts as such, conviction can be based only on the solitary evidence of  the prosecutrix and no corroboration would be required unless there are  compelling reasons which necessitate the courts for corroboration of her  statement.   Corroboration of testimony of the prosecutrix as a condition for  judicial reliance is not a requirement of law but a guidance of prudence  under the given facts and circumstances.  It is also noticed that minor  contradictions or insignificant discrepancies should not be a ground for  throwing out an otherwise reliable prosecution case.    Non-examination of  doctor and non-production of doctor’s report would not cause fatal to the  prosecution case, if the statements of the prosecutrix and other prosecution  witnesses inspire confidence.   It is also noticed that the Court while  acquitting the accused on benefit of doubt should be cautious to see that the  doubt should be a reasonable doubt and it should not reverse the findings of  the guilt on the basis of irrelevant circumstances or mere technicalities.         Reverting back to the facts of the case, the testimony of prosecutrix- PW.1 that she has been ravished by the accused at 4.00 A.M. on 1.4.1991  remains unimpeached.   She was subjected to cross-examination but nothing  could be elicited to demolish the statement-in-chief.  Her statement was  corroborated by the statements of PWs 2, 4 and 5 in material particular,  coupled with FSL report Ex.P-8 and Ex.P-9, which has been accepted by the  Trial Court and even by the High Court.  The High Court was totally erred in  law in recording the acquittal of the accused by giving him benefit of doubt  for non-examination of doctor, thereby committed grave miscarriage of  justice.         In the result, this appeal is allowed.  The order of acquittal passed by  the High Court is set-aside.  The order of conviction and sentence recorded  by the Trial Court is restored.  The respondent-accused Dayal Sahu is on  bail.  His bail bonds and surety are cancelled and he is directed to be taken  back into custody forthwith to serve out the remaining part of sentence.   Compliance report should be sent to this Court within one month.