Singh Vs. The State of M.P  INSC 375 (11 August 1995)
A.M. (Cj) Ahmadi A.M. (Cj) Sen, S.C. (J) Ahmadi, Cji
1995 AIR 2472 1995 SCC (5) 518 JT 1995 (6) 437 1995 SCALE (4)752
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 the prosecutrix was got examined by the Chemical Analyser, which
examination confirmed the existence of semen stains.
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.
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.
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.
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.
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 ground would be adding insult to injury.
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.
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.
is what this Court said in paragraph 16 of the judgment in the aforementioned
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.
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.
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 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.
the above reason we see no merit in this appeal and dismiss the same.