Moti Lal vs State Of M.P

Moti Lal ...Appellant

Versus

State of M.P. ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Madhya Pradesh High Court at

Jabalpur upholding the conviction of the appellant for

offence punishable under Sections 450 and 376(1) of the

Indian Penal Code, 1860 (in short the `IPC') and sentence

of five years and seven years rigorous imprisonment respectively and fine of Rs.2,000/- and 1,000/-

respectively with default stipulation as recorded and

imposed by the Learned Special Judge Chhattarpur in

Special Case No.33 of 2002. Appellant (hereinafter also

referred to as an `accused') was charged for commission

of offences punishable under Sections 450 and 376(1)

IPC and 3(1)(xii) of the Scheduled Castes and Scheduled

Tribes Prevention of Atrocities Act, 1989, (in short the

`Act').

3. Prosecution version as unfolded during trial was as

follows:

On 17.1.2002 at 1735 hours prosecutrix lodged report at

police station Khajuraho to that effect that on the said date at

11 O'clock she was in the field of Hannu Gadariya at Bhusaur.

The said field was taken on share basis by her husband, in

which gram and wheat were sown. As usual, she had gone to

the field for guarding. One hut was situated there, in which

she lives and cooks and eats food at that place. At the said

2 time she was alone in the hut. Her husband had gone to

village Rajnagar. Accused Motilal Gadariya who was resident

of same village, came there and enquired from her about her

husband Barelal. She told him that he had gone to Rajnagar,

and he went away. She started sweeping with broom, inside

the hut. After some time, Motilal forcibly entered her hut and

knocked her down on the floor. He pulled up her saree and

committed sexual intercourse. She kept shouting to break free,

but there was no body. Then he ran away. Being knocked

down by Motilal, her bangle on the right hand had broken and

ankle had bruised. When her husband returned from

Rajnagar, she narrated the incident to him. Then she and her

husband went to Hannu Pal and informed him about the

incident. Report was lodged and on the basis of aforesaid facts

offences were registered under Sections 452, 376 IPC and

Section 3 of the Act. The said First Information Report (in

short the `FIR') was recorded by Sub-Inspector-S.R. Rai (PW

7).

3 The prosecutrix was sent for medical examination. Dr.

Smt. Rama Parihar performed the medical examination of

which the medical examination report is Ex.P.10. The then

Sub-Divisional Officer, Police-S.S. Chahal (PW 11) prepared

spot map Exb.P7 of the place of incident during the

investigation and from the place of incident, pieces of broken

bangles found were seized vide seizure Panchnama - Exb. P.5.

On 18.01.2002 the statements of prosecutrix her husband

Parelal, Habbu and Manua were recorded. On 19.1.2002,

accused was arrested vide arrest Panchnama -Exb.P.8 and

one of his used underwear which was bearing some stains was

seized vide Seizure Panchnama -Exb.P.6. Accused was sent

for medical examination regarding his capability of performing

intercourse. The examination report is Exb.P.11. After

completion of investigation, chargesheet was produced before

Chief judicial Magistrate, Chhatarpur. On 18.2.2002 the case

has been committed from the said court to the Court of

Sessions.

4 Considering the evidence more particularly of the

prosecutrix conviction was recorded. Accused preferred an

appeal before the High Court.

The High Court on considering the evidence given by the

prosecution came to hold that the accused was guilty of the

offences punishable under Sections 376 and 450 IPC. The

appeal was accordingly dismissed.

4. In support of the appeal, learned counsel for the

appellant submitted that the prosecution version has not been

established. The uncorroborated version of the prosecutrix

should not have been relied upon by the trial court and the

High Court. It was also submitted that the punishment is

harsh.

5. Learned counsel for the State on the other hand

supported the judgments of the trial court and the High Court.

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6. In the Indian Setting refusal to act on the testimony of

the victim of sexual assault in the absence of corroboration as

a rule, is adding insult to injury. A girl or a woman in the

tradition bound non-permissive society of India would be

extremely reluctant even to admit that any incident which is

likely to reflect on her chastity had ever occurred. She would

be conscious of the danger of being ostracized by the society

and when in the face of these factors the crime is brought to

light, there is inbuilt assurance that the charge is genuine

rather than fabricated. Just as a witness who has sustained

an injury, which is not shown or believed to be self-inflicted, is

the best witness in the sense that he is least likely to

exculpate the real offender, the evidence of a victim of sex

offence is entitled to great weight, absence of corroboration

notwithstanding. A woman or a girl who is raped is not an

accomplice. Corroboration is not the sine qua non for

conviction in a rape case. The observations of Vivian Bose, J.

in Rameshwar v. The State of Rajasthan (AIR 1952 SC 54)

were:

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"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...".

7. It is settled law that the victim of sexual assault is not

treated as accomplice and as such, her evidence does not

require corroboration from any other evidence including the

evidence of a doctor. In a given case even if the doctor who

examined the victim does not find sign of rape, it is no ground

to disbelieve the sole testimony of the prosecutrix. In normal

course a victim of sexual assault does not like to disclose such

offence even before her family members much less before

public or before the police. The Indian women has tendency to

conceal such offence because it involves her prestige as well

as prestige of her family. Only in few cases, the victim girl or

the family members has courage to go before the police station

and lodge a case. In the instant case the suggestion given on

behalf of the defence that the victim has falsely implicated the

7 accused does not appeal to reasoning. There was no apparent

reason for a married woman to falsely implicate the accused

after scatting her own prestige and honour.

8. Of late, crime against women in general and rape in

particular is on the increase. It is an irony that while we are

celebrating women's rights in all spheres, we show little or no

concern for her honour. It is a sad reflection on the attitude of

indifference of the society towards the violation of human

dignity of the victims of sex crimes. We must remember that a

rapist not only violates the victim's privacy and personal

integrity, but inevitably causes serious psychological as well

as physical harm in the process. Rape is not merely a physical

assault -- it is often destructive of the whole personality of the

victim. A murderer destroys the physical body of his victim, a

rapist degrades the very soul of the helpless female. The

Court, therefore, shoulders a great responsibility while trying

an accused on charges of rape. They must deal with such

cases with utmost sensitivity. The Courts should examine the

broader probabilities of a case and not get swayed by minor

8 contradictions or insignificant discrepancies in the statement

of the prosecutrix, which are not of a fatal nature, to throw out

an otherwise reliable prosecution case. If evidence of the

prosecutrix inspires confidence, it must be relied upon

without seeking corroboration of her statement in material

particulars. If for some reason the Court finds it difficult to

place implicit reliance on her testimony, it may look for

evidence which may lend assurance to her testimony, short of

corroboration required in the case of an accomplice. The

testimony of the prosecutrix must be appreciated in the

background of the entire case and the trial Court must be

alive to its responsibility and be sensitive while dealing with

cases involving sexual molestations. This position was

highlighted in State of Punjab v. Gurmeet Singh (1996 (2) SCC

384).

9. 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 corroborated in material particulars. She

9 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 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 Indian Evidence Act, 1872 (in

short `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

10 understanding the Court is entitled to base a conviction on

her evidence unless the same is own to be infirm and not

trustworthy. If the totality of the circumstances appearing on

the record of the case discloses 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. This position was highlighted in State of

Maharashtra v. Chandraprakash Kewalchand Jain (1990 (1)

SCC 550).

10. It needs no emphasis that the physical scar on a rape

victim may heal up, but the mental scar will always remain.

When a woman is ravished, what is inflicted is not merely

physical injury but the deep sense of some deathless shame.

An accused cannot cling to a fossil formula and insist on

corroborative evidence, even if taken as a whole, the case

spoken to by the victim strikes a judicial mind as probable.

Judicial response to human rights cannot be blunted by legal

jugglery.

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11. The measure of punishment in a case of rape cannot

depend upon the social status of the victim or the accused. It

must depend upon the conduct of the accused, the state and

age of the sexually assaulted female and the gravity of the

criminal act. Crimes of violence upon women need to be

severely dealt with. The socio-economic status, religion, race,

caste or creed of the accused or the victim are irrelevant

considerations in sentencing policy. Protection of society and

deterring the criminal is the avowed object of law and that is

required to be achieved by imposing an appropriate sentence.

The sentencing Courts are expected to consider all relevant

facts and circumstances bearing on the question of sentence

and proceed to impose a sentence commensurate with the

gravity of the offence. Courts must hear the loud cry for

justice by the society in cases of the heinous crime of rape on

innocent helpless girls of tender years, married women and

respond by imposition of proper sentence. Public abhorrence

of the crime needs reflection through imposition of appropriate

sentence by the Court. There are no extenuating or mitigating

circumstances available on the record which may justify

12 imposition of any sentence less than the prescribed minimum.

To show mercy in the case of such a heinous crime would be a

travesty of justice and the plea for leniency is wholly

misplaced.

12. The evidence on record is analysed on the basis of the

principles set out above. The inevitable conclusion is that the

accused has been rightly convicted and sentenced. Impugned

judgment does not warrant any interference.

13. The appeal stands dismissed.

...............................J. (Dr. ARIJIT PASAYAT)

..............................J. (P. SATHASIVAM)

New Delhi, July 15, 2008

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