HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.1087/2012
State of M.P.
Single Bench: Hon’ble Shri Justice Vijay Kumar Shukla
Shri R.S. Shukla, amicus curiae for the appellant.
Shri Sharad Sharma, Govt. Advocate for the State.
Whether approved for Yes.
Law laid down Evidence of the prosecutrix is similar to evidence
of the injured-complainant or witness. The testimony
of the prosecutrix if found to be reliable, per se, may
be sufficient to convict a culprit and no corroboration
of her evidence is necessary. In prosecution of rape,
law does not require corroboration.
Absence of injury – external or internal, on the
body of the prosecutrix would not render the testimony
of the prosecutrix unreliable.
Significant paragraph Nos. 9.
( Jabalpur, dt.20.01.2018)
None appears for the appellant. Shri R.S. Shukla,
Advocate who is present in Court, has been appointed as an amicus
curiae, considering the fact that the appeal is pending since 2012 and
the accused-appellant is in jail since 2011.
2. In the instant appeal a challenge has been made to the
order of conviction and sentence passed by the learned XIII
Additional Sessions Judge, Bhopal, District Bhopal in S.T.
the accused-appellant has been convicted and sentenced as under:
506-II of the Indian Penal R.I. for 7 years and fine of
Code. Rs.500/-, in default, further
R.I. for three months.
(substantive sentence to run concurrently)
3. The prosecution case is that on 13-5-2011 the
prosecutrix was sleeping in her temporary shed (Jhuggi) along with
her children and her husband was out of station. At about 01:30 AM
in the night the appellant accompanying with his friend entered into
the Jhuggi and took away 9 month old child of the prosecutris on the
point of a knife and thereafter under administration of threat rape
was committed with the prosecutrix. As alleged, when the child
started crying, the neighbour – Bane Singh and his wife – Parwati
came out and the accused persons fled away from the spot.
4. In the morning the husband of the prosecutrix came and
thereafter a report was lodged. The prosecutrix was sent for medical
examination and the accused persons were arrested. On discovery
statement of the accused, a knife was seized. Vaginal slide and
`petticoat’ of the prosecutrix were sent for chemical analysis to the
5. The accused-appellant abjured the guilt and pleaded
false implication. Thereafter he was prosecuted as have been stated
6. The prosecution has examined six prosecution
witnesses. PW-2 is the prosecutrix. PW-3 is Bane Singh, neighbour
of the prosecutrix. PW-4 is Hardev Singh, Assistant Sub-Inspector
of Police who had recorded the FIR. PW-5 is Mastram, a witness of
memorandum of the accused and seizure. PW-6 is J.P. Tiladiya,
investigating officer. Dr. Abha Sharma (PW-1), who had conducted
medical examination of the prosecutrix. The testimony of the
prosecuitrix (PW-2) is corroborated with the the statement of her
neighbour – Bane Singh (PW-3), who has deposed that the
prosecutrix had come to his house and stated that she was raped by
the accused-appellant. Though he had not seen the appellant at the
spot, however, he has supported the statement of the prosecutrix that
soon after the incident she had informed him in the night.
7. Dr. Abha Sharma (PW-1) who had medically examined
the prosecutrix has stated that the prosecutrix was habitual in sexual
intercourse, but there was no injury on her private part. Her hymen
was found old and ruptured. She could not give any definite opinion
about the alleged rape.
8. Learned counsel appearing on behalf of the appellant
submitted that since no injury has been found either on the person or
private part of the prosecutrix, therefore, it is not a case of rape.
Even if the prosecution case is accepted, it was with the consent of
the prosecutrix. However, in the facts and circumstances of the case
the argument advanced on behalf of the accused-appellant cannot be
9. In the case of State of U.P. vs. Chhoteylal, AIR 2011
SC 697 it is held that mere non-presence of injury on the person or
private part of the prosecutrix, it is not sufficient to infer that the
prosecutrix was a consenting party. It was further held that the
woman is a victim of sexual assault is not an accomplice to crime.
Her evidence cannot be tested with suspicion as that of an
accomplice. In the present case, the prosecutrix has clearly deposed
that she was sleeping along with her children in the hutment and the
accused-appellant had come therein and had taken her nine month
child and she was threatened by the accused that her child would be
killed with the knife being carried by him, thereafter she was raped
by the appellant under administration of threats. In such
circumstances, if there is no sign of resistance or mark of injury on
her person, it cannot be inferred that the prosecutrix was a
10. Defence was taken that the accused-appellant has been
falsely implicated because of previous dispute between them. From
the statement of the prosecutrix there is nothing to show that there
was any reason for false implication of the accused-appellant. The
statement of the prosecutrix is well-explained and coupled with the
facts that the neighbour – Bane Singh (PW-3) was immediately
informed by the prosecutrix and a prompt FIR thereto was lodged in
the morning itself when the husband of the prosecutrix returned.
11. Thus, the prosecution has successfully proved its fact
beyond doubt. In the obtaining factual scenario, I do not find any
case for interference with the impugned judgment passed by the
learned trial Judge is made out and the findings recorded by him are
12. Accordingly, the appeal is dismissed.
(Vijay Kumar Shukla)
Digitally signed by AJAY KUMAR
Date: 2018.01.25 18:55:10 +05’30’