RAVINDRA Vs. STATE OF M.P.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1410 of 2013, Judgment Date: Feb 26, 2015
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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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