Lalliram & ANR. Vs.
State of M.P.  INSC 1556 (15 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 791 OF 2006
Lalliram and Anr. ..Appellants Versus State of M.P. ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madhya Pradesh
High Court, Gwalior Bench, upsetting the acquittal as recorded by learned
Additional Sessions Judge, Ashok Nagar, in Sessions Trial No.12/86.
Three accused persons
namely the present appellants and one Chaturbhuj faced trial for alleged
commission of offence punishable under Sections 376, 392, 342 and 506 of the
Indian Penal Code, 1860 (in short the `IPC'). The trial Court directed
acquittal of all the three accused persons. In appeal filed by the State under
Section 378 of the Code of Criminal Procedure, 1973 (in short the `Code') the
order of acquittal was set aside and accused persons were found guilty of
offence punishable under Sections 342 and 376 of IPC. But it upheld the
acquittal for offence relatable to Section 392 and 506 (II) IPC. The appellants
were sentenced to undergo seven years and six months custodial sentence and
fine with default stipulation for offences relatable to Sections 376 and 342
version which led to the trial of the accused persons is as follows:
On 23.9.1985 in the
evening prosecutrix alongwith her husband Dayaram went to Khajuria. On the way
near the field of Mangal, appellants met them and started to abuse prosecutrix.
Appellants also started beating husband of prosecutrix and took the prosecutrix
near the well of Kamal Singh where accused Pooran Singh and Lalliram talked to
Chaturbhuj. Dayaram was locked in a room. Then appellants took away the prosecutrix
to the upper room of the house and committed rape repeatedly in the night. In
the next morning they released prosecutrix and warned her not to report to
anybody. Then she brought Dayaram from the room and at that time Latura,
Gyarasa, Bharo Singh, Kamal Singh and Harihar reached there. They were informed
about the incident.
snatched a bag from the prosecutrix containing Rs.25/- and identity card of
Dayaram. Prosecutrix lodged the report in Police Station Madhogarh out post
which is Ex.P1. Investigation was undertaken. Spot map was prepared which is
Ex.P2. Prosecutrix was sent for medical examination vide Ex.P6 and she was
examined by the lady doctor, Smt. C.P. Jain (PW-11) twice, first time on
25.9.1985 and then on 5.10.1985. Ex.P6 is the report pertaining to medical
examination dated 25.9.1985. As per report Ex.P6 she gave opinion that no
definite opinion can be given about rape.
In the report it was
stated that no external injuries were found on her body. The trial Court found
that the evidence of Latura (PW-3) who is father of PW-2, Bharosa (PW-4) and
Puliabai (PW-5) was inconsistent and the defence witness Maya probabilised the
defence taken by the trial Court. Doctor also categorically stated that she was
not pregnant on the alleged date of occurrence.
High Court referred to the evidence of PWs. 1 and 2 i.e. the prosecutrix and
Dayaram respectively and observed that the version of the prosecutrix was
sufficient to fasten the guilt on the accused. Circumstances highlighted by the
trial Court were not sufficient to warrant acquittal. Though the version as
indicated in the First Information Report (in short the `FIR') and the evidence
in court were discrepant in certain aspects, it was held to be of no
of the State before the High Court was that the evidence of prosecutrix and her
husband was cogent and there was no scope for directing acquittal.
is to be noted that the trial Court had found the discrepancy in the version of
support of the appeal learned counsel for the appellants submitted that the
High Court relied on several decisions without indicating as to how the trial
Court's view was not justified. It is in essence submitted that the parameters
relating to appeal against acquittal have not been kept in view. It is stated
that the High Court relied on decisions in a mechanical manner overlooking the
improvements made by the prosecutrix and the contradictory statements made by
her which as rightly observed by the trial Court corroded the credibility of
the prosecution version.
counsel for the State on the other hand submitted that the judgment of the High
Court does not suffer from any infirmity to warrant interference.
trial Court noted that though the prosecutrix claimed that she was raped by
several persons at several times there was no injury noticed and doctor has
categorically stated that there was no sign of rape and in fact there was no
is true that injury is not a sine qua non for deciding whether rape has been
committed. But it has to be decided on the factual matrix of each case. As was
observed by this Court in Pratap Misra and Ors. v. State of Orissa (1977 (3)
SCC 41) where allegation is of rape by many persons and several times but no
injury is noticed that certainly is an important factor if the prosecutrix's
version is credible, then no corroboration is necessary. But if the
prosecutrix's version is not credible then there would be need for
corroboration. (See Aman Kumar & Ors. v. State of Haryana (2004 (4) SCC
rightly contended by learned counsel for the appellants a decision has to be
considered in the background of the factual scenario. In criminal cases the
question of a precedent particularly relating to appreciation of evidence is really
of no consequence. In Aman Kumar's case (supra) it was observed that a
prosecutrix complaining of having been a victim of the offence of rape is not
an accomplice. There is no rule of law that her testimony cannot be acted upon
without corroboration in material particulars. She stands on a higher pedestal
then the injured witness. In the latter case there is injury in the physical
form while in the former both physical as well as psychological and emotional.
However, if the court finds it difficult to accept the version of a prosecutrix
on the face value it may search for evidence direct or circumstantial.
far as testimony of the victim is concerned the High Court has found that PW-2
stated about injuries on the cheek and back of the prosecutrix. But no such
injury was found in the first medical examination. PW-2 had stated that she had
suffered injuries on her legs. But such injuries were also not noticed.
the cross-examination, the prosecutrix stated that it was Lalliram who
committed the rape first. But in her earlier statement she had stated that it
was accused Pooran who first committed the rape on her. Interestingly, she had
also deposed differently as to the place of rape. This aspect was noticed by
the trial Court. Another significant factor which was noticed by the trial
Court but not by the High Court was that PW-1 stated that there was
miscarriage. PW-1 stated that she was 4 months pregnant at the time of
occurrence. But the doctor stated that she was actually on menstruation period.
interesting statement of the prosecutrix was that accused Lalliram had dragged
her by catching her bunch of hair for a considerable distance. The trial Court
noticed that if that was so there would have been injuries and interestingly
she had not stated about this part in the FIR. As noted above, she had spoken
about scratches on her back due to dragging and other parts of the body and
that blood had also oozed out.
But the medical
evidence is clearly to the contrary. In her statement she had deposed that her
husband Daya Ram was also dragged by Pooran and Lalliram and he had also
suffered several injuries. This part is also belied by the medical evidence. In
cross-examination PW-1 admitted that accused persons harassed her and tried to
kill her. She had admitted that she was assaulted by her husband. Those are
relatable to the injuries which were fresh at the time of examination by the
doctor on 5.10.1985.
is to be noted that Smt. C.P. Jain (PW-11) examined her twice i.e. first on
25.9.1985 and then on 5.10.1985. At the time of first examination, no injury
was found on her body.
It is also to be
noted that PW-3 stated that after PW-1 regained consciousness she told about
the incident. This is contrary to what PW-2 stated. He has stated that he was
tied by the accused persons and in the morning he was untied by PW-1. By that
time obviously PW-3 and PW-4 had not arrived.
In fact PW-4 says
that when he and PW-3 went to the place of occurrence the victim was lying
view of the aforesaid factual position the trial Court was justified in
directing acquittal and the High Court's judgment upsetting the acquittal is
16. The appeal is
allowed. The conviction recorded by the High Court is set aside. The accused
persons who are in custody shall be released forthwith unless required to be in
custody in connection with any other case.
(Dr. ARIJIT PASAYAT)