Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1407 of 2013, Judgment Date: Nov 21, 2014

                                                                     Non-Reportable

                        IN THE SUPREME COURT OF INDIA



                       CRIMINAL APPELLATE JURISDICTION



                       CRIMINAL APPEAL NO.1407 OF 2013



      MANOHARLAL                                                  .... Appellant



                                        Versus



      STATE OF M.P.                                               .... Respondent





                               J U D G M E N T



      Uday Umesh Lalit, J.



      1.    This appeal challenges the judgment and order  dated  31.08.2012

      passed by the High Court of Madhya Pradesh, Indore Bench  in  Criminal

      Appeal No. 442 of 1998 affirming the judgment and order of  conviction

      and sentence passed by the Sessions Judge, Ratlam  in  Sessions  Trial

      No.18 of 1997.



      2.    The instant matter arises out of FIR No.93  of  1997  lodged  on

      31.07.1997 at about 6:10 a.m. by PW-2 victim to the effect that in the

      previous night the appellant herein had  committed  rape  on  her  and

      following was her version.   The  victim,  an  adivasi  woman,  though

      married was staying with her parents at Devipada.  On 30.07.1997 after

      having visited her brother at Khetalpur, she had returned by  bus  and

      alighted at Bajna bus stand at about 10:00 P.M.  She was sitting  near

      a Ghumti when the appellant approached her and  suggested  to  her  to

      spend  the  night  at  Dharamshala  with  his  children.    She   then

      accompanied him to Dharamshala but since there  were  no  children  he

      took her to the house of another person.  There a man  suffering  from

      fever was sleeping and on the appellant suggesting that the victim  be

      allowed to sleep there, said  man  raised  objection.   Thereupon  the

      appellant went to get the keys of his house,  during  which  time  she

      came back to Dharamshala situated at the bus stand. The appellant came

      back and finding the victim to have fallen asleep,  woke  her  up  and

      tried to take her to his house.  The victim having refused to  go,  he

      caught her hand and forcibly took her to his house.  In the house  the

      appellant had forcible sexual intercourse with  her,  after  which  he

      asked the victim to spend the night at his  house.   However  she  ran

      away and returned to Dharamshala and slept there.  The appellant  came

      back to Dharamshala and suggested that he could make arrangements  for

      her in the bus at which time a policeman also  came.   At  Dharamshala

      the victim told everything to one Riyaz who was like a brother to her.





      3.    Next day i.e., on 31.07.1997 she reached the police station  and

      lodged FIR exhibit P-2 as stated above, on  the  basis  of  which  the

      investigation  was  undertaken.   The  victim  was  sent  for  medical

      examination and was examined by Dr.  Sarojini  Ben  Patel  (PW-1)  who

      found no injuries on the private or external parts of her body and the

      doctor could not give any opinion about rape.   The  appellant  having

      been apprehended was also sent for medical examination and  was  found

      to be capable of having sexual intercourse.  After due  investigation,

      the appellant was charged for having committed offence  under  Section

      376 IPC and under Section 3 (2) (5) of the SC/ST Atrocities Act, 1989.





      4.    In the trial the victim was examined as PW-2 who reiterated  her

      version as stated above.  Riyaz who was examined as PW-3  however  did

      not support the case of the  prosecution  and  was  declared  hostile.

      Going by the medical evidence the trial court found that  no  definite

      opinion could be given about commission of rape.  However  relying  on

      the testimony of the victim it convicted the appellant  under  section

      376 IPC and sentenced him to undergo rigorous imprisonment  for  seven

      years and to pay fine of  Rs.1,000/-  in  default  whereof  to  suffer

      further  imprisonment  for  two  months.   The  Trial  Court   however

      acquitted the appellant of the offence under section 3 (2) (5) of  the

      SC and ST Atrocities Act, 1989.



      5.    In the appeal preferred by the appellant the High  Court  relied

      on the testimony of the victim and confirming the order of  conviction

      and sentence it dismissed the appeal.  The present  appeal  arises  at

      the instance of the appellant challenging his conviction and sentence.

       While granting special leave to appeal the appellant was directed  to

      be released on bail  vide  order  dated  09.09.2013.   We  have  heard

         Mr.  Ram  Ekbal  Roy,  learned  Advocate  for  the  appellant   and

      Ms. Ayesha Chaudhary, learned Advocate for the State.



      6.    Though as a matter of law the sole testimony of the  prosecutrix

      can sufficiently be relied upon to bring home  the  case  against  the

      accused, in the instant case we find her version to be improbable  and

      difficult to accept on its face value.  The law on the point  is  very

      succinctly stated in Narender Kumar v. State (NCT of  Delhi)  reported

      in (2012) 7 SCC 178, to which one of us (Dipak Misra, J). was a party,

      in following terms.

              "20.    It is  a  settled  legal  proposition  that  once  the

             statement  of  the  prosecutrix   inspires confidence

             and is accepted by the court as such, conviction can  be  based

             only on  the  solitary  evidence  of  the  prosecutrix  and  no

             corroboration would be required  unless  there  are  compelling

             reasons which necessitate the court for  corroboration  of  her

             statement.  Corroboration of testimony of the prosecutrix as  a

             condition for judicial reliance is not a requirement of law but

             a guidance of prudence under the given facts and circumstances.

              Minor contradictions or insignificant discrepancies should not

             be a ground for throwing out an otherwise reliable  prosecution

             case.



              21.     A prosecutrix complaining of having been a  victim  of

             the offence of rape is not an accomplice after the crime.   Her

             testimony  has  to  be  appreciated   on   the   principle   of

             probabilities just as the testimony of  any  other  witness;  a

             high degree of probability having been shown to exist  in  view

             of the subject-matter being a criminal charge. However, if  the

             court  finds  it  difficult  to  accept  the  version  of   the

             prosecutrix on its face value,  it  may  search  for  evidence,

             direct or  circumstantial  which  may  lend  assurance  to  her

             testimony....."



                 Having found it difficult to accept her  testimony  on  its

      face value, we searched for  support  from  other  material  but  find

      complete lack of corroboration on material  particulars.   First,  the

      medical examination of the victim  did  not  result  in  any  definite

      opinion that she was subjected to rape.   Secondly, Riyaz who was like

      a brother to the victim and thus a close confidant, has not  supported

      the case of the prosecution and has completely denied having  met  her

      when she allegedly narrated the incident to him.  Thirdly  the  person

      who was suffering from fever and to whose house she was first taken by

      the appellant was not examined at all.  Fourthly,  the  policeman  who

      the victim met during the  night  was  also  not  examined.   Fifthly,

      neither the brother nor any of the parents of the victim were examined

      to corroborate the version that she had come from the village  of  her

      brother and alighted around 10:00 P.M. at Bajna  bus  stand.   Lastly,

      the sequence of events as narrated would show that she  had  allegedly

      accompanied the appellant to various places.  In the circumstances, we

      find extreme difficulty in relying upon  the  version  of  the  victim

      alone to bring home the charge against the appellant.  We are inclined

      to give benefit of doubt to the appellant.


      7.     We, therefore, set aside the order of conviction  and  sentence

      passed against the appellant.  The present appeal is thus allowed  and

      the appellant is acquitted of the charge  leveled  against  him.   The

      appellant who was released on bail, is discharged of his bail bonds.





                                         .............................J.

                                             (Dipak Misra)



                                         .............................J.

                                             (Uday Umesh Lalit)

      New Delhi,

      November 21, 2014