Zibarsingh Pilya Bhilal vs State Of Mah.Thr.Pso Amravati on 22 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.639 OF 2004

Zabarsingh Pilya Bhilala,
Aged about 32 years,
R/o Molakheda, Tq. Dharni,
District Amravati.
Convict No.C-2767, Amravati
Central Prison, Amravati. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Dharni,
Taluqa – Dharni, District – Amravati. …. RESPONDENT

__

None of the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.
DATED : 22
nd SEPTEMBER, 2017

ORAL JUDGMENT :

The appellant seeks to assail the judgment and order

dated 05-5-2004, delivered by the III rd Ad hoc Assistant Sessions Judge,

Achalpur in Sessions Trial 80/1997, by and under which the appellant

(hereinafter referred to as the “accused”) is convicted for offences

punishable under Sections 363, 366 and 376 read with Section 34 of

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the Indian Penal Code and is sentenced to suffer rigorous

imprisonment for five years, five years and seven years respectively for

the aforesaid offences in addition to payment of fine of Rs.500/- for

each offence.

2. The accused faced trial alongwith Anarsingh Jagan More,

Bhumsingh Chhotu Masniya and Mansingh Shekdya Waskalya.

Anarsingh More absconded and at the instance of the other accused,

the trial was separated. The other two accused Bhumsingh and

Mansingh are convicted for offences punishable under Sections 363

and 366 of the Indian Penal Code.

3. The record reveals that the learned Counsel appointed to

represent the accused has not collected the paper-book. The learned

Counsel appointed to represent the accused is absent when the appeal

is called out for hearing. Since the learned Counsel has not even

collected the paper-book, it is obvious that this Court is not likely to

have the benefit of the assistance of the learned Counsel appointed to

represent the accused. Consistent with the dictum of the Hon’ble

Supreme Court in the case in Bani Singh and others vs. State of

Uttar Pradesh reported in (1996) 4 SCC 720, I intend to decide the

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appeal on merits.

4. I have carefully scrutinized the original record of the

proceeding, with the able and fair assistance of the learned Additional

Public Prosecutor Shri N.B. Jawade.

5. The first information report is lodged by the father of the

prosecutrix on 11-1-1996 at 12-10 hours. The oral report is at Exhibit

31 and the printed first information report is at Exhibit 32.

6. The oral report Exhibit 31 states that on 10-1-1996 P.W.1

accompanied by his daughter (prosecutrix) and a relative Dhawalsingh

(P.W.10) had gone to the field situated in jungle to cut grass. The

grass was loaded in the bullock cart and while P.W.1, the prosecutrix

(P.W.2) and P.W.10 were returning to the village, at 3’O clock in the

afternoon, the accused forcibly took the prosecutrix to jungle. P.W.1

resisted, he was assaulted by the accused on the left leg with a wooden

stick and suffered injuries. P.W.1 was assaulted on the ear with an axe

by accused Bhumsingh. The daughter of P.W.1 sought the help of

Dhawalsingh with the result that even Dhawalsingh (P.W.10) was

assaulted by the accused. The accused physically assaulted the

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prosecutrix and kidnapped her. P.W.1 further states in the report that

the accused wished to forcibly solemnized the marriage of the

prosecutrix. On the basis of the said report, offence punishable under

Sections 323, 363, 366 read with Section 34 of the Indian Penal Code

were registered vide Crime No.6/1996 at the police station Dharni,

District Amravati.

7. The case of the prosecution is that the prosecutrix rescued

herself from the clutches of the accused and returned to her house at

4-00 p.m. or thereabout on 11-1-1996. The prosecutrix disclosed that

she was raped by the accused and on the basis of her statement, an

offence punishable under Section 376 of the Indian Penal Code was

additionally registered against the accused. The completion of

investigation led to submission of the charge-sheet in the Court of the

learned Judicial Magistrate First Class, Dharni, who committed the

case to the Sessions Court. The learned Sessions Judge framed charge

at Exhibit 22. The accused pleaded not guilty and claimed to be tried.

The defence of the accused, as is evident from the trend and tenor of

the cross-examination and the statement recorded under Section 313

of the Code of Criminal Procedure, is of total denial and false

implication.

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8. The father of the prosecutrix who is the informant is

examined as P.W.1. He has deposed that on the day of the incident,

accompanied by the prosecutrix and P.W.10, he had gone to the field

for cutting grass. The grass was loaded in the bullock-cart and on the

way back at Awalaghat, they were accosted by the accused. The

prosecutrix and P.W.1 were on foot following the bullock-cart. The

accused caught the hands of the prosecutrix while the other accused

started beating P.W.1. He has deposed that accused Bhumsingh dealt

an axe blow on the left leg, accused Anarsingh dealt an axe blow near

the ear and accused Mansingh assaulted the prosecutrix. The accused

took the prosecutrix to Ahirkhed towards the jungle. P.W.1 reached

his house and then went to Dharni Police Station to lodge the report.

He states that on next day the prosecutrix returned and told him that

she escaped from the clutches of the accused. In the cross-

examination, P.W.1 is suggested that the prosecutrix and the accused

were in love, which suggestion is denied. P.W.1, however, accepts that

accused proposed to the prosecutrix and that P.W.1 declined the

marriage proposal. P.W.1 denies the suggestion that the prosecutrix

was willing to marry the accused. It is suggested to P.W.1 that there

existed a land dispute between P.W.10 Dhawalsingh and one of the

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accused Anarsingh, which suggestion is denied. P.W.1 has denied the

suggestion that prosecutrix reached Awalaghat before P.W.1 and

P.W.10 and since P.W.1 and P.W.10 did not locate the prosecutrix,

apprehending that the prosecutrix had eloped with the accused, a false

report was lodged.

9. The cross-examination of P.W.1 reveals that the evidence

of P.W.1 that the accused accosted P.W.1 the prosecutrix and P.W.10

and then the accused forcibly took the prosecutrix to the jungle, is not

seriously challenged. The defence, as is evident from the trend and

tenor of the cross-examination is that the prosecutrix and the accused

were in love and that a false report was lodged since P.W.1 did not

locate the prosecutrix and suspected that she had eloped with the

accused. I find the evidence of P.W.1 to be broadly consistent with the

first information report and even otherwise trustworthy.

10. Be it noted that, under the circumstances, although the

incident occurred at 3-00 p.m., the first information report lodged at

12-00 noon the next day, is not unduly delayed. The police station is

at a distance of 40 km. The informant reached his house on 10-1-1996

and went to the police station on the next day. The village is situated

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in a tribal area and the topography and the terrain is challenging to say

the least. The informant was not expected to attempt to reach the

police station in the evening considering that the police station is at a

distance of 40 km. from the village and the lodging of the first

information report the next day is, therefore, sufficiently explained by

the prosecution.

11. The prosecutrix is examined as P.W.2. Her testimony is

more or less consistent with the testimony of P.W.1. She states that on

the day of the incident, she accompanied P.W.1 and P.W.10 to the field

to cut the grass. The grass was cut till 2-00 p.m., was loaded in the

bullock-cart and while returning to the village, the prosecutrix P.W.1

and P.W.10 were accosted by the accused. P.W.2 has deposed that the

accused caught her hands and while the other accused were physically

assaulting P.W.1 and P.W.10, the accused started forcibly taking her

towards the jungle. She has deposed that since she refused to

accompany the accused, she was beaten by stick. She has further

narrated the specific role played by the other accused Bhumsingh,

Mansingh and Anarsingh. P.W.2 prosecutrix has deposed that she was

raped by the accused twice. She states that she escaped from the

clutches of the accused and returned home the next day at 4-00 p.m.

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She then deposes that she was medically examined at Amravati. It

must be noted, that the prosecution version is that since lady doctor

was not available at Dharni, the prosecutrix was examined at Dufferin

Hospital, Amravati. The cross-examination has not shaken the

credibility of the prosecutrix. While she admits that the accused

proposed marriage and that her father P.W.1 rejected the proposal,

she denies the suggestion that she was ready to marry the accused and

that she was in love with the accused. A suggestion was given to the

prosecutrix that since P.W.1 and P.W.10 did not locate her, they

searched for her. This suggestion was given to the prosecutrix in the

context of the defence that since P.W.1 and P.W.10 did not locate the

prosecutrix, the report came to be lodged against the accused

suspecting that the prosecutrix had eloped with the accused. The

suggestion is, however, denied.

The evidence of the prosecutrix is implicitly reliable and

confidence inspiring. The cross-examination has not seriously

challenged the version of the prosecutrix. Not a single omission

partaking the character of contradiction or improvement or

embellishment is brought on record.

12. The other eyewitness to the incident is Dhawalsingh who

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is examined as P.W.10. The evidence of P.W.10 is substantially and

broadly consistent with the evidence of P.W.1 and P.W.2. An omission

or two is brought on record. However, the omission is too insignificant

to cause any damage to the credibility to the testimony of P.W.10.

13. The evidence of the prosecutrix is more than amply

corroborated by the medical evidence. The medical examination

reports are at Exhibits 63 and 64 and the medical practitioner who has

examined the prosecutrix is examined as P.W.8. The medical

examination report Exhibit 63 refers the following injuries on the

person of the prosecutrix:

i) Abrasion size 2 cm. x ½ cm. over the back of right elbow
joint.

ii) Lenier contusion 4 cm. x ½ cm. over the left scapula
region. It was tender.

iii) Lenier contusion 3 cm. x ½ cm. over the middle part of
back. It was also tender.

iv) Abrasion of ½ x ½ cm. over back side of the lower legs.

over calf.

v) Contusion with haematoma, 4 cm. x 3 cm. over the left
buttock.

vi) Contusion 4 cm. x 2 cm. with abrasion over right buttock.

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The examination of the genitalia and private part of the

prosecutrix was separately conducted and the report of the said

examination is at Exhibit 64. The following findings and injuries are

recorded in Exhibit 64 :

i) Abrasion 1½ x ½ cm. over the lower side of labia majora,

ii) Multiple small abrasion on the vagina orifices,

iii) Vagina admits two fingers with difficulty. Uterus ante
generated small size abrasion about 1 cm. near introitus
no fresh bleeding,

iv) lacerated wound 1/2cm. X ½ cm. inside the introitus
lower side of vagina.

14. The medical officer P.W.8 has opined that the prosecutrix

was raped. In the cross-examination, P.W.8 states that although

Exhibit 64 does not specifically mention that the hymen was torn, the

fact that vagina admits two fingers with difficulty would imply that the

hymen was torn. The cross-examination has failed to impeach the

evidence of P.W.8.

15. Be it noted, that in all fairness, the learned Additional

Public Prosecutor Shri N.B. Jawade has stated that in so far as the

injuries suffered by P.W.1 and P.W.10 are concerned, although the

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respective requisitions to the medical officer are proved as Exhibits 41

and 42, the injury certificates are not proved since the medical

practitioner who has issued the injury certificates is not examined.

Learned Additional Public Prosecutor fairly states that the fact that

P.W.1 and P.W.10 suffered injuries may not be held as proved only on

the basis of their testimonies in view of the failure of the prosecution

to prove the injury certificates.

16. The learned Additional Public Prosecutor Shri N.B. Jawade

invites my attention to the articulation of the Hon’ble Supreme Court

in State of Maharashtra vs. Chandrapraksh Kewalchand Jain

reported in (1990) 1 SCC 550 and in particular to paragraphs 15 to 17

19 which read thus :

“15. It is necessary at the outset to state what the
approach of the court should be while evaluating the
prosecution evidence, particularly the evidence of the
prosecutrix, in sex offences. Is it essential that the evidence of
the prosecutrix should be corroborated in material
particulars before the court bases a conviction on her
testimony? Does the rule of prudence demand that in all
cases save the rarest of rare the Court should look for
corroboration before acting on the evidence of the
prosecutrix? Let us see if the Evidence Act provides the clue.
Under the said statute ‘Evidence’ means and includes all
statements which the court permits or requires to be made
before it by witnesses, in relation to the matters of fact under

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inquiry. Under Section 59 all facts, except the contents of
documents, may be proved by oral evidence. Section 118
then tells us who may give oral evidence. According to that
section all persons are competent to testify unless the court
considers that they are prevented from understanding the
questions put to them, or from giving rational answers to
those questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the same
kind. Even in the case of an accomplice Section 133 provides
that he shall be a competent witness against an accused
person; and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an
accomplice. However, illustration (b) to Section 114, which
lays down a rule of practice, says that the Court ‘may’
presume that an accomplice is unworthy of credit, unless he
is corroborated in material particulars. Thus under Section
133, which lays down a rule of law, an accomplice is a
competent witness and a conviction based solely on his
uncorroborated evidence is not illegal although in view of
Section 114, illustration (b), courts do not as a matter of
practice do so and look for corroboration in material
particulars. This is the conjoint effect of Sections 133 and
114, illustration (b).

16. A prosecutrix of a sex offence cannot be put on par
with an accomplice. She is in fact a victim of the 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 under Section 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 levelled by her. If the court keeps this in mind and
feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice incorporated
in the Evidence Act similar to illustration (b) to Section 114

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which requires it to look for corroboration. 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. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult
and of full understanding the court is entitled to base a
conviction on her evidence unless the same is shown to be
infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case disclose
that the prosecutrix does not have a strong motive to falsely
involve the person charged, the court should ordinarily have
no hesitation in accepting her evidence. We have, therefore,
no doubt in our minds that ordinarily the evidence of a
prosecutrix who does not lack understanding must be
accepted. The degree of proof required must not be higher
than is expected of an injured witness. For the above reasons
we think that exception has rightly been taken to the
approach of the High Court as is reflected in the following
passage:

“It is only in the rarest of rare cases if the court finds
that the testimony of the prosecutrix is so trustworthy,
truthful and reliable that other corroboration may not be
necessary.”

With respect, the law is not correctly stated. If we may
say so, it is just the reverse. Ordinarily the evidence of a
prosecutrix must carry the same weight as is attached to an
injured person who is a victim of violence, unless there are
special circumstances which call for greater caution, in
which case it would be safe to act on her testimony if there is
independent evidence lending assurance to her accusation.

17. We think it proper, having regard to the increase in
the number of sex violation cases in the recent past,
particularly cases of molestation and rape in custody, to
remove the notion, if it persists, that the testimony of a

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woman who is a victim of sexual violence must ordinarily be
corroborated in material particulars except in the rarest of
rare cases. To insist on corroboration except in the rarest of
rare cases is to equate a woman who is a victim of the lust of
another with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a
woman that her story of woe will not be believed unless it is
corroborated in material particulars as in the case of an
accomplice to a crime. Ours is a conservative society where it
concerns sexual behaviour. Ours is not a permissive society
as in some of the Western and European countries. Our
standard of decency and morality in public life is not the
same as in those countries. It is, however, unfortunate that
respect for womanhood in our country is on the decline and
cases of molestation and rape are steadily growing. An
Indian woman is now required to suffer indignities in
different forms, from lewd remarks to eve-teasing, from
molestation to rape. Decency and morality in public life can
be promoted and protected only if we deal strictly with those
who violate the societal norms. The standard of proof to be
expected by the court in such cases must take into account
the fact that such crimes are generally committed on the sly
and very rarely direct evidence of a person other than the
prosecutrix is available. Courts must also realize that
ordinarily a woman, more so a young girl, will not stake her
reputation by levelling a false charge concerning her
chastity.

18. ………

19. It is time to recall the observations of this Court made
not so far back in Bharwada Bhognibhai Hirjibhai: (SCC
p.224, para 9)

“In the Indian setting, refusal to act on the testimony
of a victim of sexual assaults in the absence of corroboration
as a rule, is adding insult to injury. Why should the evidence
of the girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion? To do so is

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to justify the charge of male chauvinism in a male
dominated society. We must analyze the argument in
support of the need for corroboration and subject it to
relentless and remoreseless cross-examination. And we must
do so with a logical, and not an opinionated, eye in the light
of probabilities with our feet firmly planted on the soil of
India and with our eyes focused on the Indian horizon. We
must not be swept off the feet by the approach made in the
Western World which has its own social milieu, is own social
mores, its own permissive values, and its own code of life.
Corroboration may be considered essential to establish a
sexual offence in the backdrop of the social ecology of the
Western World. It is wholly unnecessary to import the said
concept on a turnkey basis and to transplant it on the
Indian soil regardless of the altogether different atmosphere,
attitudes, mores, responses of the Indian Society, and its
profile. The identities of the two worlds are different. The
solution of problems cannot therefore be identical.”

Proceeding further this Court said: (SCC pp. 225-26, para 10)
“Without the fear of making too wide a statement, or
of overstating the case, it can be said that rarely will a girl
or a woman in India make false allegations of sexual assault
………. The statement is generally true in the context of the
urban as also rural society. It is also by and large true in the
context of the sophisticated, not so sophisticated, and
unsophisticated society. Only very rarely can one conceivably
come across an exception or two and that too possibly from
amongst the urban elites. Because: (1) A girl or a woman in
the tradition bound non-permissive society of India would be
extremely reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred. (2) She
would be conscious of the danger of being ostracized by the
society or being looked down by the society including by her
own family members, relatives, friends and neighbours.
(3) She would have to brave the whole world. (4) She would
face the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial home
and happiness being shattered. (5) If she is unmarried, she
would apprehend that it would be difficult to secure an

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alliance with a suitable match from a respectable of an
acceptable family. (6) It would almost inevitably and almost
invariably result in mental torture and suffering to herself.
(7) The fear of being taunted by others will always haunt
her. (8) She would feel extremely embrassed in relating the
incident to others being over powered by a feeling of shame
on account of the upbringing in a tradition-bound society
where by and large sex is taboo. (9) The natural inclination
would be to avoid giving publicity to the incident lest the
family name and family honour is brought into controversy.
(10) The parents of an unmarried girl as also the husband
and members of the husband’s family of a married woman
would also more often than not, want to avoid publicity on
account of the fear of social stigma on the family name and
family honour. (11) The fear of the victim herself being
considered to be promiscuous or in some way responsible for
the incident regardless of her innocence. (12) The reluctance
to face interrogation by the investigating agency, to face the
court, to face the cross-examination by counsel for the
culprit, and the risk of being disbelieved, acts as a
deterrent.”

17. The facts of Chandrapraksh Kewalchand Jain were that the

State challenged the judgment of this Court by and under which the

judgment of the learned Sessions judge was reversed and the accused

was acquitted of offence punishable under Section 376 of the Indian

Penal Code. This Court was pleased to observe that it is only in the

rarest of rate cases and if the Court finds that the testimony of the

prosecutrix is so trustworthy truthful and reliable, that other

corroboration may not be necessary. The Hon’ble Apex Court,

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however, held that the law was not correctly stated by this Court and

the law is just the reverse.

18. The learned Additional Public Prosecutor has also relied

on the judgment of the Hon’ble Supreme Court in the case of In Vijay

alias Chinee vs. State of Madhya Pradesh reported in (2010) 8 SCC

191 the Hon’ble Supreme Court observes thus:

“9. In State of Maharashtra v. Chandraprakash
Kewalchand Jain this Court held that a woman, who is the
victim of sexual assault, is not an accomplice to the crime
but is a victim of another person’s lust and, therefore, her
evidence need not be tested with the same amount of
suspicion as that of an accomplice. The Court observed as
under:

“16. A prosecutrix of a sex offence cannot be put on
par with an accomplice. She is in fact a victim of the 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 under Section 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 levelled by her. If the court keeps this in mind and
feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice incorporated
in the Evidence Act similar to illustration (b) to Section 114
which requires it to look for corroboration. If for some

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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. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult
and of full understanding the court is entitled to base a
conviction on her evidence unless the same is shown to be
infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case disclose
that the prosecutrix does not have a strong motive to falsely
involve the person charged, the court should ordinarily have
no hesitation in accepting her evidence.”

10. In State of U.P. Vs. Pappu this Court held that even
in a case where it is shown that the girl is a girl of easy
virtue or a girl habituated to sexual intercourse, it may not
be a ground to absolve the accused from the charge of rape.
It has to be established that there was consent by her for
that particular occasion. Absence of injury on the
prosecutrix may not be a factor that leads the court to
absolve the accused. This Court further held that there can
be conviction on the sole testimony of the prosecutrix and in
case, the court is not satisfied with the version of the
prosecutrix, it can seek other evidence, direct or
circumstantial, by which it may get assurance of her
testimony. The Court held as under: (SCC p. 597, para 12)

“12. It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that her
testimony cannot be acted without corroboration in
material particulars. She stands at a higher pedestal than
an injured witness. In the latter case, there is injury on the
physical form, while in the former it is both physical as
well as psychological and emotional. However, if the court
of facts finds it difficult to accept the version of the
prosecutrix on its face value, it may search for evidence,
direct or circumstantial, which would lend assurance to

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her testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would do.”

11. In State of Punjab v. Gurmit Singh this Court held
that in cases involving sexual harassment, molestation etc.
the court is duty bound to deal with such cases with utmost
sensitivity. Minor contradictions or insignificant
discrepancies in the statement of a prosecutrix should not be
a ground for throwing out an otherwise reliable prosecution
case. Evidence of the victim of sexual assault is enough for
conviction and it does not require any corroboration unless
there are compelling reasons for seeking corroboration. The
court may look for some assurances of her statement to
satisfy judicial conscience. The statement of the prosecutrix
is more reliable than that of an injured witness as she is not
an accomplice. The Court further held that the delay in filing
FIR for sexual offence may not be even properly explained,
but if found natural, the accused cannot be given any benefit
thereof. The Court observed as under: (SCC pp. 394-96
403, paras 8 21)

“8. ….. The court overlooked the situation in which a
poor helpless minor girl had found herself in the company of
three desperate young men who were threatening her and
preventing her from raising any alarm. Again, if the
investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the
driver or the car, how can that become a ground to discredit
the testimony of the prosecutrix? The prosecutrix had no
control over the investigating agency and the negligence of
an investigating officer could not affect the credibility of the
statement of the prosecutrix….. The courts must, while
evaluating evidence remain alive to the fact that in a case of
rape, no self-respecting woman would come forward in a
court just to make a humiliating statement against her
honour such as is involved in the commission of rape on her.
In cases involving sexual molestation, supposed
considerations which have no material effect on the veracity
of the prosecution case or even discrepancies in the

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20 apeal639.04

statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be allowed
to throw out an otherwise reliable prosecution case…
Seeking corroboration of her statement before replying upon
the same, as a rule, in such cases amounts to adding insult
to injury….. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. …..

* * *

21. ….. The courts should examine the broader probabilities
of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the
prosecutrix inspires confidence, it must be relied upon
without seeking corroboration of her statement in material
particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be
alive to its responsibility and be sensitive while dealing with
cases involving sexual molestations.”

(emphasis in original)

12. In State of Orissa v. Thakara Besra this Court held
that rape is not mere a physical assault, rather it often
distracts (sic destroys) the whole personality of the victim.
The rapist degrades the very soul of the helpless female and,
therefore, the testimony of the prosecutrix must be
appreciated in the background of the entire case and in
such cases, non-examination even of other witnesses may
not be a serious infirmity in the prosecution case,
particularly where the witnesses had not seen the
commission of the offence.

13. In State of H.P. v. Raghubir Singh this Court held

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21 apeal639.04

that there is no legal compulsion to look for any other
evidence to corroborate the evidence of the prosecutrix before
recording an order of conviction. Evidence has to be weighed
and not counted. Conviction can be recorded on the sole
testimony of the prosecutrix, if her evidence inspires
confidence and there is absence of circumstances which
militate against her veracity. A similar view has been
reiterated by this Court in Wahid Khan v. State of M.P.
placing reliance on earlier judgment in Rameshwar v. State
of Rajasthan.

14. Thus, the law that emerges on the issue is to the effect
that statement of the prosecutrix, if found to be worthy of
credence and reliable, requires no corroboration. The court
may convict the accused on the sole testimony of the
prosecutrix.”

19. The evidence of the prosecutrix is implicitly reliable and

trustworthy. In the factual matrix, her evidence is more than amply

corroborated by the testimonies of P.W.1, P.W.8 and P.W.10 and the

medical evidence on record. The prosecution evidence, tested on the

touchstone of law enunciated by the Hon’ble Supreme Court in the

judgments referred to supra proves the offence under Section 376 of

the Indian Penal Code beyond reasonable doubt.

20. The appeal is sans merit and is dismissed. Bail bond of the

accused shall stand cancelled. The accused be taken into custody

forthwith to serve the sentence.

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22 apeal639.04

The appeal is disposed of accordingly.

JUDGE

adgokar

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