Anil and Another vs State of M.P.

Ashok Kumar Tiwari, J.

Appellants have been convicted by learned Special Judge (S.C./S.T.), Mandsaur u/s 376(2)(g) of Indian Penal Code vide judgment dated 16.2.2001 passed in Special Criminal Case No. 78/ 2000.

(a) Briefly stated, the prosecution''s case in that on the date of incident i.e. 8.9.1999 at about 10.00 a.m. the prosecutrix (PW-1) was washing her on well situated at her field. At that juncture, appellants Anil and Madanlal, who were sitting behind the well, came from behind and they dragged her to their field and committed rape on her. Firstly, appellant Anil committed rape on her and thereafter appellant Madanlal committed rape on her. After the commission of rape, they threatened her not to disclose the incident to any one else she shall be killed.

(b) The prosecutrix (PW-1) went to her house. At that time, her father had gone to village Rokdiya. She told her mother (PW-2) about the incident. Her mother went to village Rokdiya to call her husband Ghisalal (PW-3). She told him regarding the incident. Her husband immediately came to his village and took the prosecutrix (PW-1) to Police Station, Manasa where she made First Information Report (Ex. P/1). Police sent her to C.H.C. Manasa where she was examined by Dr. Kiran Bansal (PW-4) and M.L.C. Report was prepared by the witness. The undergarment petticoat worn by the prosecutrix was sealed by DR. Kiran Bansal (PW-4). She also cut the pubic heirs of the prosecutrix and sealed them. The slide of vaginal swab of the prosecutrix was also prepared by DR. Kiran Bansal (PW-4). All these articles were sent for chemical examination by the police during the investigation. Appellants, after their arrest, were got medically examined by Dr. D.K. Bhatnagar (PW-7). After the necessary investigation, charge sheet was filed against the appellants.

Learned trial Court framed charges under Sections 375(2)(g) and 506 of Indian Penal Code and Sections 3(1), 12 of Scheduled Caste & Scheduled Tribe (Prevention of Atrocity) Act, 1989. Appellants abjured their guilt and were put to trial. After trial, they were acquitted of the charges u/s 506 of Indian Penal Code & Sections 3(1), 12 of Scheduled Caste & Scheduled Tribe (Prevention of Atrocity) Act, 1989, but were convicted u/s 376(2)(g) of Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- each. Hence, appellants have filed this appeal.

Prosecutrix (PW-1) has deposed in her testimony that on the date of incident at about 10.00 a.m., she was washing up on the well. She has deposed that appellant Anil and Madanlal came from behind the well and they pressed her mouth and took her to their field where Anil committed rape on her and thereafter appellant Madan committed rape on her. She has deposed in her statement that after the commission of rape, they threatened her brandishing a knife that in case, she disclosed regarding the incident to any one, they will kill her.

According the testimony of prosectrix (PW-1), she went to her house and her father was not at the house. He had gone to village Rodkiya and she told her mother regarding the incident and thereafter her mother called her father and they went to Manasa where she made first information report Ex.P/1 at police station. Police sent her to C.H.C. Manasa for being medically examined. A prosecutrix of a sex offence cannot be put par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 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 leveled by her. If the Court keeps this in mind and feels satisfied then it can act on the evidence of the prosecutrix. 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.

According to the statement of prosecutrix (PW-1), appellants dragged her from well to the field of appellant Anil. But no injury excepting on left and inner side of upper lip was found on her body. There was no injury on her private parts even. In the absence of injuries on the body and on private parts of the body leads the story of rape improbable and unreliable. In case, young girl is subjected to sexual intercourse against her will, that too by two persons successively, in all the probabilities injuries are bound to occur on her body particularly on the private parts. Only one abrasion is found on inner side of upper lip of the prosecutrix. Had she made offered any struggle injuries on outer side would have been caused. The presence of an abrasion, as found in the medical examination of the prosecutrix, is not enough to offer corroboration to the testimony of prosecutrix. According to Taylor, a false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. In the present case though some marks are said to be present, but looking to the story of the prosecution and the nature of the injury due to which the mark was caused; they are wholly inadequate. Therefore, they cannot corroborate the testimony of the prosecutrix and the prosecution story.

According to the testimony of prosecutrix (PW-1) the field of appellant Anil''s father and the field of her father are adjacent to each other. According to her, she was taken in this field belonging to appellant Anil or Anil''s father. A man of ordinary prudence will not take a girl to his field to commit rape on her in broad day light particularly when he knows that her field is adjacent to her field. The story of prosecution is opposed to the human nature and appears to be improbable.

Dr. Kiran Bansal (PW-4) who has examined the prosecutrix has deposed in paragraph 8 of her statement that pubic hairs were cut and kept for examination because at the time of sexual intercourse, they come in the maximum contact and semen might be found present on them. She has further deposed that in this particular case semen was bound to be present because two persons had committed rape. But, according to the report of the chemical examination, no semen has been found present on the pubic hairs of the prosecutrix. According to Dr. Kiran Bansal (PW-4), pubic hairs of the prosecutrix were meted still the semen and the spermatozoa were not found in the chemical analysis. In this situation, the corroboration received by the presence of semen spots on petticoat and slide of the prosecutrix looses its significance due to the shadow of doubt casted by the fact of absence of semen and spermatozoa on the pubic hair. Even otherwise, there is no evidence to prove that the petticoat is the same petticoat which she was wearing at the time of incident; therefore, presence of semen on it is not of much use to the prosecution.

Dr. Kiran Bansal (PW-4) has deposed in her testimony that no definite opinion could be given regarding the commission of rape on the prosecutrix which makes the prosecution story doubtful and improbable.

On the basis of the above discussion, it is clear that prosecution case has not been proved beyond reasonable doubt. The statement of the prosecutrix (PW-1) is not reliable to such an extent that appellants could be convicted merely on the basis of the statement of prosecutrix (PW-1). Her statement is not corroborated by medical evidence even. Therefore, appellants are entitled to get benefit of doubt, because it is the principle of law that benefit of doubt goes to the accused.

Consequently, this appeal is allowed. The appellants are given benefit of doubt and acquitted of the offence u/s 376(2)(g) of Indian Penal Code. The appellants are in jail, they be set at liberty, if not required in any other case.