caselaws
Supreme Court of India
Ravindra vs State Of M.P on 26 February, 2015Author: P C Ghose
Bench: M.Y. Eqbal, Pinaki Chandra Ghose
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1410 OF 2013
Ravindra … Appellant
:Versus:
State of Madhya Pradesh … Respondent
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This appeal by special leave arises from the judgment and order dated
12.3.2013 passed by the High Court of Madhya Pradesh, Bench at Indore,
in Criminal Appeal No.1275 of 1997 whereby the High Court has upheld
the sentence awarded to the appellant by the Additional Sessions
Judge, Khargone, in S.T. No. 288/94. The Trial Court convicted the
appellant under Section 376(1) of the Indian Penal Code (“IPC”, for
short) and sentenced him to 10 years rigorous imprisonment with a fine
of Rs. 2000/-, and in default of payment of fine, 6 months simple
imprisonment.
2. The factual matix of the case is that on 24.8.94, the complainant
Narmadabai had gone to the field of the accused Ravindra for doing
labour work. When she was plucking Moong Beans at about 12 O’ clock,
accused Ravindra came near her, caught her hand, pushed her down and
committed sexual intercourse without her consent. Complainant cried
but nobody was nearby. The Petticoat of the complainant was stained
with semen of the accused. After committing rape the accused fled away
from the spot. The prosecutrix (PW1) came home and she narrated the
incident to her parents. Her mother called her maternal uncles,
Shankar Singh (PW4) and Pahadsingh (PW5) and father of the
prosecutrix. On the same day, an FIR was lodged by the prosecutrix
(PW1) at Police Station Bhikagaon. The complainant and the accused
were medically examined by Smt. Vandana Sarkanungo (PW3) and gave a
report. On 1.09.1994 accused was arrested vide arrest memo. The
clothes of the prosecutrix and the accused were sent to the FSL. After
completion of the investigation, charge sheet was filed before the
Judicial Magistrate, First Class, Bhikagaon, against the accused under
Section 376 IPC which was registered as Criminal Case No.590/94.
3. The findings of the lower Court, as stated in the impugned judgment
were that at the time of occurrence the prosecutrix (PW-1) was above
16 years of age. PW1 in her statement very categorically made
allegation against the present appellant that when she was alone in
the agricultural field of the appellant/accused, he came and
forcefully caught hold of both her hands, and thereafter removed her
clothes and committed rape. Dr. Smt. Vandana Sarkanungo (PW3) did not
find any injury on the internal and external part of the prosecutrix
(PW1) and opined that prosecutrix was habitual to sexual intercourse.
In respect of the false implication on the appellant, it has come on
record in the statement of Nand Kishore (PW2), who is father of the
prosecutrix, that a sum of Rs.500/- was taken on loan by him from the
appellant. But PW1 and PW2 have not deposed that due to the aforesaid
reason there was previous enmity between them. The finding on this
aspect of the High Court in the impugned judgment was that if there
was any enmity, the appellant/accused could not have come to the house
of the prosecutrix for inviting her to work in his agricultural field.
The appellant/accused was examined by the doctor who found him capable
of performing sexual intercourse. Semen was found in the undergarments
of the prosecutrix, from the exhibit.
4. After considering the evidence adduced by the parties, the High Court
was of the view that it is well settled that the woman who is a victim
of sexual assault is not an accomplice to the crime. Her evidence
cannot be tested with suspicion as that of an accomplice. As a matter
of fact her evidence is similar to the evidence of an injured
complainant or witness. The testimony of the prosecutrix, if found
reliable by itself may be sufficient to convict the culprit and no
corroboration of her evidence is necessary. Secondly, in prosecution
of rape, the law does not require corroboration. The evidence of the
prosecutrix may sustain a conviction. It is only by way of abundant
caution that Court may look for some corroboration so as to satisfy
its conscience and rule out any false accusations. Thus, the High
Court was of the view that the Trial Court had not committed any error
in convicting the appellant under Section 376 of IPC. The statement of
the prosecutrix was reliable. Prompt FIR was lodged by her and no
further corroboration of her statement was required.
5. Learned counsel for the appellant submitted that the Trial Court and
the High Court ignored the contradictions in the statements of the
prosecutrix Smt. Narmadabai (PW1) and Nand Kishore (PW2) on the
question, whether the prosecutrix was called in the field in the
morning or in the afternoon or a day in advance. The High Court also
committed an error in accepting the finding of the Trial Court without
any evidence, that no injury was found on her body as rape was
committed on the sand. Counsel submitted that except some sand on her
clothes, no statement was given by the prosecutrix that the incident
took place on plain soil, ruling out any possibility of injury. In
view of the medical examination of the prosecutrix, Dr. Vandana, who
examined her, did not give any definite opinion about rape being
committed on the prosecutrix and there were no injury on her private
parts or other part of body though as per her statement the rape was
committed in the field having standing crop, 5 feet high Jawar crop
and 4 feet high Moong crop. The prosecutrix also stated that she
grappled in the field for 15-20 minutes, but no signs of injury were
found either on the prosecutrix or on the appellant. Appellant’s
statement is also contradicted by the medical evidence.
6. According to the learned counsel for the appellant, the High Court
committed an error in placing reliance on Sheikh Zakir vs. State of
Bihar, AIR 1983 SC 911, and holding that no corroboration is required
for convicting the accused under Section 376, on account of a long
line of judicial decisions which held that where a case is tried by a
judge alone, and is based on evidence of the prosecutrix without any
corroboration, it will not be illegal on that sole ground. In case of
a grown up and married woman it is safe to insist on such
corroboration. Further, it was argued by the counsel for the appellant
that the High Court made an error by placing reliance in the case of
State of U.P. v. Chhoteylal, AIR 2011 SC 697, as it was not applicable
to the present matter.
7. Counsel for the appellant further submitted that this was a case where
there was a possibility of consent of the prosecutrix. The prosecutrix
tried to show that she was less than 16 years, which is found to be
false in the present case. The medical evidence shows that her hymen
was old ruptured and it was in the healing stage. The medical
examination report had given no definite opinion regarding rape. The
statement of Dr. Vandana (PW3) also supported that view as no injury
either on the person of Narmadabai or on her private parts was found.
Her hymen being old ruptured was in healing condition. There was no
injury on any of them even though the incident took place in 5 feet
Jawar crop and 4 feet Moong crop and they had grappled for 15-20
minutes.
8. In view of the admitted statements of PW1 and PW2 that before lodging
the report, they made offer for compromise to the appellant’s father
and when the appellant’s father did not agree for compromise, they
lodged the FIR. Nand Kishore (PW2) has himself admitted that he
received Rs.500/- from the appellant’s father some 3-4 years ago but
had not returned the same till that date. Thus, a false case has been
fastened since a demand had been made for the return of the amount.
PW4 and PW5, who are the two maternal uncles of the prosecutrix, did
not support her and they were declared hostile.
9. Further, the learned counsel, relying on the Trail Court judgment,
contended that the Prosecutrix has failed to establish that her age
was below 16 years and in view of the fact that there was no sign of
rape or any injury, the present case, at the most, is a case of
consent.
10. Learned counsel appearing for the State, on the other hand, has relied
on the fact of presence of semen on the Petticoat of the prosecutrix.
It is submitted that the Chemical Examiner report found that the
sample of semen found on the garments was not sufficient to link the
same with the accused.
11. Now, we shall examine whether this case falls under proviso to Section
376 IPC, to award a lesser sentence for “adequate and special reason”.
In the present case, the incident took place 20 years ago and now with
passage of time both victim and accused are married (not to each
other) and they have entered into a compromise. Thus, an adequate and
special reason for awarding a lesser sentence exists in terms of
proviso to Section 376.
12. Learned Counsel for the appellant has taken four primary grounds of
defence. First, that there is no sign of injury on the body of the
victim and no definite opinion of rape is given by the PW-3, though
there had been grappling for 15-20 minutes between the victim and the
accused. However, the victim has stated that she did not scratch the
accused and that the accused caught hold of her hand and put her down
and committed rape in the field. From this it can be inferred that
rape was committed on the ground in the field. But it is highly
improbable that their clothes would not tear and there would not be
any injury on the body of the victim. In Dastagir Sab & Anr. v. State
of Karnataka, (2004) 3 SCC 106, it was held by this Court that
presence of injury on the body of the victim is not a sine qua non to
prove the charge of rape. In the said case, the facts showed that
medical examination was conducted after a month of the alleged
offence. The medical opinion was that abrasion or marks of violence
would be visible for twenty four hours and thereafter the same may
disappear. In the present case, the medical examination was done on
the same day on which the alleged offence was committed, and going by
the medical examination report and the statement of P.W.3, it is
improbable that rape was committed.
13. The second ground taken by the defence is that there is absence of
spermatozoa in the vaginal swab of the victim and the Chemical
Examination report found that the sample of semen found on the
garments of the victim was insufficient to link the same with the
accused. On the aspect of benefit of doubt, this Court has observed in
Hem Raj v. State of Haryana, (2014) 2 SCC 395, that prosecution had
brought on record FSL report which showed that human semen was
detected on the salwar of the prosecutrix and on the underwear of the
accused. However it was difficult to infer from this that the
prosecutrix was raped by the accused. The appellant in that case was
given benefit of doubt.
14. In the present case, the Chemical Examiner report found that the
sample of semen was not sufficient to link the same to the accused,
notwithstanding that absence of spermatozoa on the vaginal smear could
not be allowed to tell against the version of the prosecutrix, as held
in Narayanamma v. State of Karnataka & Ors., (1994) 5 SCC 728.
15. The third ground of defence taken by the accused is that there is no
corroboration and there is contradiction in the prosecution case on
important aspects, though on the aspect of appreciation of evidence,
being the testimony of the prosecutrix, this Court has held in
Narendra Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, that minor
contradictions or insignificant discrepancies in the evidence of the
witnesses are not of a substantial character. However, in Sadashiv
Ramrao Hadbe v. State of Maharashtra & Anr., (2006) 10 SCC 92, where
the sole testimony is unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable to belie the case set
up by the prosecutrix, this Court held that Court shall not act on the
solitary evidence of the prosecutrix. Thus, in light of the above the
Court should not rely solely on the testimony of the prosecutrix. The
statement in the present case requires corroboration as it has minor
contradictions and is not corroborated by other prosecution witnesses.
The two maternal uncles (PW-4 and PW-5) of the prosecutrix did not
support her and were declared hostile.
16. The fourth ground of defence taken by the appellant is that under
proviso to Section 376(2) of IPC, the legislature has empowered the
Court to award lesser sentence where “adequate and special reasons”
exist. The incident in the present case had taken place 20 years ago.
The victim (prosecutrix) and the accused have entered into a
compromise stating therein that the prosecutrix does not want to
proceed with the case against the accused and wants to close the case.
Both of them are married (not to each other) and have settled in life.
Learned counsel for the appellant contends that this is an “adequate
and special reason” for awarding lesser sentence.
17. This Court has in the case of Baldev Singh & Ors. v. State of Punjab,
(2011) 13 SCC 705, invoked the proviso to Section 376 (2) (g) of IPC
on the consideration that the case was an old one. The facts of the
above case also state that there was compromise entered into between
the parties.
18. In light of the discussion in the foregoing paragraphs, we are of the
opinion that the case of the appellant is a fit case for invoking the
proviso to Section 376(2)(g) of IPC for awarding lesser sentence, as
the incident is 20 years old and the fact that the parties are married
and have entered into a compromise, are the adequate and special
reasons. Therefore, although we uphold the conviction of the appellant
but reduce the sentence to the period already undergone by the
appellant. The appeal is disposed of accordingly.
…………………………………
..J
(M.Y. EQBAL)
…………………………………
..J
(PINAKI CHANDRA
GHOSE)
New Delhi;
February 26, 2015.
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