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Rajkumar and anr. Vs. State of M.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCri. Appeal No. 2395 of 1997
Judge
Reported in2000CriLJ1896
ActsIndian Penal Code (IPC), 1860 - Sections 34, 376 and 452; Code of Criminal Procedure (CrPC) - Sections 161 and 383
AppellantRajkumar and anr.
RespondentState of M.P.
Appellant AdvocateKiran Jain, Adv.
Respondent AdvocateS.K. Rai, Panel Lawyer
DispositionAppeal allowed
Cases Referred(S.N. Bhusare v. State of Maharashtra
Excerpt:
.....should be fully reliable to dispense with the necessity of corroboration. state of maharashtra air 1998 sc 3131 :1998 cri lj 4559. 8. the present case is not of the type where the testimony of the prosecutrix may be held to be fully reliable......prosecution case was that rukmanibai (p.w. 4) aged about 40 years was living as a tenant in the house of accused rajkumar in bhatapara. she was married to hiralal when she was young. she had two sons through him. she left him and after ten years she remarried ramdas. she left him also after seven years. she was living alone and doing the work of coolie to eke out her livelihood. on 30-10-1996 at 1 o'clock on the night she was sitting in her house. at that time accused rajkumar came to her and caught hold of her hand. motu was outside the house. the bangles of her hand were broken. they took her at some distance near the canal and had forcible sexual intercourse with her one by one. she resisted but the accused threatened her. she came back to her house and narrated the incident to her.....
Judgment:

S.P. Khare, J.

1. Appellants Raj Kumar and Motu have been convicted under Section 376, Indian Penal Code for committing rape on Rukmanibai (P.W.4) aged about 40 years on 30-10-1996 at 1 A.M. near a canal in Bhatapara, Raipur and each of them has been sentenced to rigorous imprisonment for ten years. Appellant Rajkumar has been further convicted under Section 452 and accused Motu under Sections 452/34, I.P.C. and each of them has been sentenced to rigorous imprisonment for three years on that count. They have filed this appeal from Jail under Section 383, Cr.P.C. where they are lodged from 31-10-1996.

2. The prosecution case was that Rukmanibai (P.W. 4) aged about 40 years was living as a tenant in the house of accused Rajkumar in Bhatapara. She was married to Hiralal when she was young. She had two sons through him. She left him and after ten years she remarried Ramdas. She left him also after seven years. She was living alone and doing the work of coolie to eke out her livelihood. On 30-10-1996 at 1 O'clock on the night she was sitting in her house. At that time accused Rajkumar came to her and caught hold of her hand. Motu was outside the house. The bangles of her hand were broken. They took her at some distance near the canal and had forcible sexual intercourse with her one by one. She resisted but the accused threatened her. She came back to her house and narrated the incident to her neighbours Mantram and Bhadobai. Next day she lodged the F.I.R. Ex. P-4 at Bhatapara Police Station at 7.15 A.M. She was sent for medical examination. She was examined by Dr. Rita Chaba (P.W.6) at 11.45 A.M. but she did not find any injury on her person or on her genitals. She also did not find any sign of recent sexual intercourse with her. The medical report is Ex. P-7.

3. The accused persons pleaded not guilty. Their defence was that they have been falsely implicated.

4. The trial Court held the testimony of Rukmanibai (P.W.4) reliable and trustworthy though there was no corroboration from any external source or from medical evidence. It was observed that she has made certain exaggerations in her evidence but those were held insufficient to affect her credibility.

5. After hearing the learned counsel for both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellants is not well founded. The reasons are (a) the prosecutrix is aged about 40 years and the accused persons are aged 23-34 years of age (b) accused Rajkumar is living with his young wife in the same house (c) in the F.I.R. the incident is said to have taken place at 1 A.M. but in the deposition the prosecutrix says that it took place at about 10 P.M. when she was taking meals (d) in the evidence the prosecutrix states that accused Rajkumar entered in her house after breaking open the door but there is no such allegation in the F.I.R. or in the statement Ex. D-1 under Section 161, Cr.P.C. (e) in her evidence she states that accused took out a knife and brought her out of her house at the knife point but this is conspicuously absent in the F.I.R. and the statement Ex. D-1(f) she claims to have shouted but nobody came out though the two ladies are living in her neighbourhood (g) she is said to have been dragged up to the canal and two persons are said to have forcibly raped her but there was not even a minor scratch on her body and there was no sign of recent sexual intercourse with her as per medical report, (h) in her evidence she gives a graphic description that one accused caught hold of her hand while the other had intercourse with her but that is also not mentioned in F.I.R. or the statement Ex. D-1(i) she states like a professional that the accused persons wiped their penis after the intercourse with the cloth of her peticoat but that does not find place in the F.I.R. or in the statement Ex. D-1, (j) in the F.I.R. she states that immediately after the incident she narrated it to Manram and Bhadobai but they have not been examined by the prosecution to support her version (k) the antecedents of the prosecutrix are that she has left two husbands and she is not being kept by her sons with them (1) she has denied the suggestion that she is running a brothel and two girls were recovered from her house though she admits that there was a police raid on her house (m) as already stated the medical report does not substantiate the version of the prosecutrix (h) the trial Court sought corroboration from the report of the chemical examiner to the effect that seminal stains were found on the vaginal swab of the prosecutrix but Dr. Rita Chaba (P.W. 6) does not say in her evidence that she had prepared the slides from her vaginal swab --no question was put to the doctor on this point either by the public prosecutor or by the trial Court (o) the trial Court noticed some of these unusual features in the prosecution case and also observed that the prosecutrix has exaggerated her version but brushed them aside perhaps labouring under the impression that she is a lady and therefore her version that she was subjected to gang rape must be accepted (p) the evidence of Chuhadmal (D.W. 1) who is a ward member and swears that the prosecutrix is a woman of bad character (bajaru Aurat) has been rejected on the ground that his opinion is not based on his personal knowledge but on general reputation. He is very categorical that the prosecutrix is a prostitute who is seen in search of customers at the Railway Station and he has complained to the police also several times about her character. He has further deposed that the prosecutrix had come to her to ask whether she would get compensation as she belongs to the scheduled caste, (q) the suggestion of the defence in the cross-examination of the prosecutrix that accused Rajkumar in whose house she is living as a tenant objected to the way she is leading her life and then she threatened, to see him, is reasonably plausible and has a ring of truth.

6. The evidence adduced by the prosecution is not at all satisfactory. The prosecutrix is not of such character whose testimony can be accepted without corroboration. Her evidence is such that it does not pass the test of even 'may be true' muchless 'must be true'. In a criminal case the guilt of the accused must be established beyond reasonable doubt. The evidence in this case tested on that touchstone falls short of the requisite standard. In the opinion of this Court it is more likely that the accused persons are the victims of black mailing at the hands of the prosecutrix. Improbability is heaped upon improbability in her testimony.

7. Conviction in a rape case depends to a large extent upon the credibility of the prosecutrix. There must be some reassuring guarantee that her version is truthful and fully reliable. Her testimony may be sterling variety and unimpeachable character and in such a case there is no need of corroboration of her testimony and it is in this category of cases that the Supreme Court has held in a catena of cases that corroboration is not a sine qua non for a conviction in a rape case. Bharwada Bhoginbhai Harjibhai v. State of Gujarat AIR 1983 SC 753 : 1983 Cri LJ 1096, State of Maharashtra v. C.K. Jain AIR 1990 SC 658 : 1990 Cri LJ 889, State of Punjab v. Gurmit Singh AIR 1996 SC 1393 : 1996 Cri LJ 1728, State of A.P. v. G. S. Murthy AIR 1997 SC 1588 : 1997 Cri LJ 774 and Ranjit Hazarika v. State of Assam (1998) 8 SCC 635. But in case of a grown up prosecutrix whose testimony suffers from basic infirmities and is not fully reliable it cannot form the sole basis for conviction. The 'probabilities factor' should not render her testimony as unworthy of credence. Her evidence must inspire confidence and it should be fully reliable to dispense with the necessity of corroboration. Seeking corroboration should not be insisted upon as a rule but there are cases and cases and there can be no straight-jacket formula for every case. It is necessary for the Court to evaluate, scrutinise and weigh the evidence of the prosecutrix in right perspective. The beacon light is furnished by the caveat in Gurmit Singh's case : 'Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty'. The Court must deal rape cases with utmost sensitivity taking every precaution that an innocent person is not punished in a zeal to deal with such cases with a stern hand. The evidence must be appreciated 'in the totality of the background of the entire case and not in isolation'. (G.S. Murthy's case). There can be no conviction if the circumstances as a whole indicate that no reliance can be placed upon the testimony of the prosecutrix. (S.N. Bhusare v. State of Maharashtra AIR 1998 SC 3131 : 1998 Cri LJ 4559.

8. The present case is not of the type where the testimony of the prosecutrix may be held to be fully reliable. The conviction and sentence of the appellants are set aside and they are acquitted of the charges under Sections 376, 452 and 452/34, I.P.C. They will be set at liberty forthwith.


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