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Kalyan Pal vs The State Of Madhya Pradesh on 23 July, 2018

1 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

Criminal Appeal No.954/2017

………Appellant: Kalyan Pal

Versus

………Respondent: State of M.P.
—————————————————————————————-
Shri Sushil Goswami, Counsel for the appellant.
Shri R.K. Awasthi, Public Prosecutor for the respondent/State.
—————————————————————————————-
Date of hearing : 17/07/2018
Date of Judgment : 23/07/2018
Whether approved for reporting : Yes
Law laid down:

Significant paragraphs:
JUDGMENT

(23/07/2018)
Per Justice G.S. Ahluwalia,

This Criminal Appeal has been filed under Section 374 of

Cr.P.C. against the judgment dated 4/4/2017 passed by the

Special Judge [Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act], Shivpuri in Special Sessions Trial

No.7/2016, by which the appellant has been convicted for offence

under Sections 366 and 376 (2) (n) of IPC and has been

sentenced to undergo rigorous imprisonment of ten years and a
2 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

fine of Rs.5,000/- with default imprisonment on both counts. Both

the sentences have been directed to run concurrently.

2. The necessary facts for disposal of present appeal in short

are that the prosecutrix was the permanent resident of village

Anandpur, Police Station Dehat, District Datia and her matrimonial

house is situated in village Thanra, Police Station Dinara, District

Shivpuri. On 11/10/2015 the prosecutrix left her matrimonial house

on the pretext of going to her parental home and boarded the bus

at Thanra Bus stop. The appellant, who is also the resident of

village Thanra noticed that the prosecutrix has boarded the bus,

therefore, he also boarded the bus. When the bus reached Dinara

bus stand, the appellant requested the prosecutrix to deboard the

bus on the pretext of talking to her. When the prosecutrix alighted

the bus, then the appellant requested her to accompany him.

When it was objected by the prosecutrix, then the appellant

extended the threat that he would kill her seven years old boy, as

a result of which, the prosecutrix accompanied the appellant, from

where they went to Jhansi Bus stand and thereafter from Jhansi

Bus stand they went to Babina. At Babina the appellant took a

house on rent and stayed there alongwith the prosecutrix for a

period of about one and half months and during this period he

raped the prosecutrix on several occasions. In the meanwhile,

when the prosecutrix did not reach her parental home, then she

was searched by her husband. The appellant is also the resident
3 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

of the same locality where the matrimonial house of the

prosecutrix is situated and he too was absent. Accordingly, the

husband of the prosecutrix lodged a Gum Insan report at Police

Station Dinara and he on his own also was searching for the

prosecutrix and the child. Thereafter, he received an information

that the prosecutrix and the child are in village Babina from where

the prosecutrix alongwith her child were recovered. As the

appellant got the information that the husband of the prosecutrix is

coming, therefore, he absconded from the spot. The FIR was

lodged by the prosecutrix at Police Station Dinara, which was

registered as Crime No.463/2015 and accordingly, the police

registered an offence under Sections 376, 366, 506 of IPC and

under Sections 3 (1) 12 and 3 (2) (v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act (in short “the Act”).

After concluding the investigation, the police filed the charge-

sheet for the above mentioned offences.

3. The trial court by order dated 29/1/2016 framed charge

under Sections 366, 376 (2) (n) of IPC and under Section 3 (2) (v)

of the Act.

4. The appellant abjured the guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined Deepak

Kumar (PW-1), Prosecutrix (PW-2), Mukesh Jatav (PW-3),

Kaliyabai (PW-4), Prabhawati (PW-5), Anjana Khare (PW-6),

Bhagwandas (PW-7), Brijesh Pachori (PW-8), Dr. Indu Jain (PW-

4 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

9) and S.C. Pateriya (PW-10).

6. The appellant did not examine any witness in his defence.

7. The trial court by judgment and sentence dated 4/4/2017

passed in Special Sessions Trial No.7/2016 convicted the

appellant for offence under Sections 366 and 376 (2) (n) of IPC

and sentenced him to undergo the rigorous imprisonment of ten

years and a fine of Rs.5,000/- with default imprisonment on both

counts. Both the sentences have been directed to run

concurrently, and acquitted the appellant for offence under

Sections 3(1)(12) and 3(2)(v) of the Act.

8. Challenging the judgment and sentence passed by the court

below, it is submitted by the counsel for the appellant that if the

entire evidence which has come on record is considered in its

entirety, then it would be clear that the prosecutrix herself was the

consenting party. She on her own left her matrimonial house along

with the appellant and came to Jhansi bus stand along with the

appellant from where they went to Babina where the appellant

took a house on rent and the prosecutrix along with her seven

years old son stayed with the appellant for a period of more than

one month and during that period the prosecutrix did not resist or

object the act of physical relations. Although the prosecutrix was

never kept in confinement and all the time she was free to move

and talk to anybody, but still she did not try to contact her in-laws

or her parents or even did not inform any neighbors that she has
5 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

been abducted and is being kept in confinement and is being

raped by the appellant frequently. It is submitted that thus, from

the evidence which has come on record, it is clear that the basic

requirement of Section 375 Firstly of IPC have not been

established by the prosecution beyond reasonable doubt and,

hence, the appellant is liable to be acquitted.

9. Per contra, it is submitted by the counsel for the State that

the prosecution has established beyond reasonable doubt that the

prosecutrix was abducted by the appellant and she was kept

against her will in village Babina and she was raped by the

appellant. It is further submitted that it is well established principle

of law that where the prosecutrix has stated that she was raped by

person without her consent, then there is no reason to disbelieve

the said statement.

10. Heard learned counsel for the parties.

11. The prosecutrix (PW-2) has stated that about 8-9 months

back, at about 8-9 AM, she was going to her parental home by

bus. Her seven years old son was also with her and present

appellant was also sitting in the same bus. When the bus reached

Jhansi bus stand, at that time the appellant asked the prosecutrix

to go along with him to Babina. When she refused to do so, then

the appellant took the son of the prosecutrix and again said that

the prosecutrix must accompany him. Thereafter, the prosecutrix

went to Babina along with the appellant in a bus where she stayed
6 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

with the appellant in a room. Her son was also with her. The

appellant had committed rape on her in the room on certain

occasions. When she requested the appellant not to do so, then

the appellant used to say that when both of them are residing

together, then this is not unnatural. About one month thereafter

her in-laws came to know about her whereabouts, therefore, her

husband along with other in-laws and Sarpanch came to Babina

for taking her back and at that time the appellant was not in the

house. She came back to her matrimonial house from Babina

from where she went to Police Station Dinara along with her

husband, in-laws and other persons. The FIR was lodged by her

at Police Station Dinara, which is Ex.P/2. She was sent for

medical examination, however, she did not tell any place of

incident to the police. In cross-examination, she admitted that the

house of a relative of appellant is also situated in village Angora

and her parental home is also in village Angora. She further stated

that the house of Bua of the appellant is situated at a distance of

1-2 km. from the house of her father. The appellant was not

known to her when she was residing in Angora. Thereafter, this

witness on her own has stated that she was introduced by the

Bua (father’s sister) of the appellant. She further admitted that she

is knowing the appellant after her marriage and the house of the

appellant and her matrimonial house are adjoining to each other

and their agricultural fields and well are also adjoining to each
7 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

other. She also admitted that the appellant and the prosecutrix

used to meet each other even in isolation. She further stated that

she was going to her parental home as her mother was not well

and she boarded the bus from Dinara for going to Angora. She

further admitted that the bus going towards Datia takes a different

route and does not go to Jhasni. The prosecutrix on her own

clarified that from Dinara the appellant took her to Jhansi in a

different bus. She further stated that at Dinara bus stand there

were lot of passengers and similarly there were number of

passengers in the bus, in which she went to Jhansi. She further

admitted that while she was going alongwith the appellant in the

bus she neither raised any alarm nor informed the conductor of

the bus or passengers that the appellant is forcibly taking her

away. When she alighted from the bus at Jhansi bus stand for

going to Babina even at that time she did not inform anybody that

the appellant is forcibly taking her to Babina nor she informed in

this regard to the passengers or conductor of the bus by which

they were going to Babina. She further stated that she did not

make any attempt in her defence. It is further submitted that lot of

houses are situated adjoining to the room where she and the

appellant had stayed. She further stated that after leaving the

prosecutrix and her child in the room the appellant used to go to

market for taking articles and during that period she used to stay

back in the room along with her son. She further admitted that in
8 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

absence of the appellant she could have run away from the room,

but did not try to run away from the room. She further admitted

that she did not narrate to any neighbors about the incident. She

further admitted that during the period when she and the appellant

were staying in Babina, the appellant used to go to market every

day for taking articles and during this period she was all alone in

the room and even during this period also, she did not narrate the

incident to anybody. She further admitted that she along with her

son and the appellant had gone to Odissa for tourism purposes.

Thereafter, on her own she stated that one more person was

accompanying the appellant. She further admitted that in Odissa

also she did not inform anybody. She further stated that whenever

the appellant had physical relation with her, she had merely

refused, but did not do anything and she had stayed with the

appellant for a period of one month and twenty days. She further

stated that her husband is in the habit of consuming alcohol and

in inebriated condition he used to beat her. Further, she denied

that her relation with her husband were strained. She further

denied that she on her own had requested the appellant to take

her to some other place as her husband in inebriated condition

used to beat her. Thereafter, she further stated that one Pran

Singh Banjara is staying at the well of the appellant, who had said

that she should go for tourism and accepting the suggestions

given by Banjara she went along with the appellant willingly. She
9 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

further stated that she has engaged a lawyer, who has come from

Dinara along with her. She further denied that she has given the

evidence as per the advice given by her counsel.

12. Mukesh Jatav (PW-3) is the husband of the prosecutrix, who

has stated that she had left her matrimonial house along with her

son on the pretext that she is going to her parental home. On the

next day, when he inquired from her in-laws, then he was told that

the prosecutrix has not reached her parental home. He tried to

find out the whereabouts of the prosecutrix and when he could not

succeed, then he lodged a Gum Insan report. About one month of

lodging the Gum Insan report, he came to know that the

prosecutrix is living along with the appellant at Babina. Thereafter,

he along with 10-15 persons went to Babina from where they went

to the house of Mausi of the appellant where the prosecutrix and

her son were found, then they came back to his house. In cross-

examination, attention of this witness was invited to the omission

in his case diary statement that the prosecutrix and her son were

found in the house of Mausi of the appellant, however, this

witness could not explain the reason of such omission.

13. Kaliyabai (PW-4) is the mother-in-law of the prosecutrix. She

has merely stated that she does not know anything about the

incident and she was declared hostile.

14. Prabhawati (PW-5) is the Constable, who had taken he

prosecutrix for medical examination.

10 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

15. Anjana Khare (PW-6) is the Sub Inspector, who was posted

in village Karera, District Shivpuri, who has stated that she was

informed by the SHO, Police Station Dinara that a lady has come

for lodging the report and since there is no lady officer in the

police station, therefore, she went to Police Station Dinara where

she recorded the statement of the witnesses. The FIR, Ex.P/2,

was written on the report given by the prosecutrix.

16. Bhagwandas (P.W.7) has stated that vide Ex. P.5, the

prosecutrix was recovered in the police station Dinara.

17. Brajesh Pachouri (P.W.8) is the constable who had brought

a sealed packet from the District Hospital Shivpuri and had

handed over the same to the Head Constable Ravindra Prakash

vide seizure memo Ex. P.7.

18. Dr. Indu Jain (P.W.9) had conducted the medical

examination of the prosecutrix and vide medical report, Ex. P.8,

no external/internal injury was found on the body of the

prosecutrix.

19. S.C. Pateria (P.W. 10) was the investigating officer who had

prepared the spot map, Ex. P.09 and had recorded the statements

of the witnesses. One sealed packet along with specimen of seal

was brought by Constable from District Hospital Shivpuri, which

was seized vide seizure memo Ex. P.10. The appellant was

arrested vide arrest memo Ex. P.11 and the seized articles were

sent to F.S.L. Gwalior by memo Ex. P.12.

11 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

20. The contention of the Counsel for the appellant is that the

prosecutrix herself was the consenting party and nothing was

done without her consent.

Section 375 First of I.P.C., reads as under :

375. Rape.–A man is said to commit “rape” if he–

(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him or any other
person; or

(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,
under the circumstances falling under any of the following
seven descriptions–

First.–Against her will……………..

Thus, in order make the act of an accused punishable under

Section 376 of I.P.C., the prosecution must prove that the woman

was subjected to sexual relations without her Will.

21. Therefore, absence of Will is the basic requirement, for

making the act of sexual relation, a rape. However, where

undisputedly, the two persons, i.e., the appellant and the

prosecutrix were involved in sexual activities, then the moot

question for determination would be that whether the act of sexual

intimacy was without the will of the prosecutrix or it was with her

consent. Whether the prosecutrix was a consenting party and
12 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

whether her claim, that She was subjected to sexual violation, is a

question which has to be determined after considering the

surrounding circumstances. Although it is a well established

principle of law that the sole testimony of the prosecutrix is

sufficient to hold the accused guilty of committing rape, but where

the evidence of the prosecutrix is not found trustworthy, then She

can be disbelieved.

22. Whether the prosecutrix had involved herself in the sexual

relations willingly or not, is a debatable question of fact. The word

“willingness” would mean that when a woman in her full senses,

and with clear understanding of the consequences of intimate

relationship, agrees to involve herself in sexual relations, without

any misconception of fact and without any coercion or pressure,

then it can be said that the act of sexual intimacy was not against

the will of the woman.

23. The Supreme Court in the case of Kuldeep K. Mahato Vs.

State of Bihar reported in (1998) 6 SCC 420 has held as under :

11. Then coming to the conviction of the
appellant under Section 376 IPC, although both
the courts below have held after accepting the
evidence of the prosecutrix as being truthful
that the appellant had forcibly committed the
rape, we are of the opinion that the said finding
is unsustainable. The prosecutrix had sufficient
opportunity not only to run away from the house
at Ramgarh but she could have also taken the
help of the neighbours from the said village.
The medical evidence of Dr Maya Shankar
Thakur, PW 5 also indicates that there were no
injuries on the person of the prosecutrix
13 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

including her private parts. Her entire conduct
clearly shows that she was a consenting party
to the sexual intercourse and if this be so, the
conviction of the appellant under Section 376
IPC cannot be sustained. There is one more
additional factor which we must mention that it
is not the case of the prosecutrix that she was
put in physical restraint in the house at
Ramgarh, with the result that her movements
were restricted. This circumstance also goes to
negative the case of forcible intercourse with
the prosecutrix by the appellant.

The Supreme Court in the case of Mohan Lal Vs. State of

Rajasthan reported in (2002) 10 SCC 14 has held as under :

14. We have noticed these omissions and
contradictions in her cross-examination only
with a view to test the credibility of this witness
because the conviction of the appellant is
based primarily on her evidence. We find that in
the course of investigation, she had not stated
that she was forcibly pushed inside the room of
the appellant; or that the appellant had slapped
her and out of fear she did not raise a hue and
cry; or that after the appellant went away, she
was not permitted to leave by the wives of the
two brothers of the appellant but on the
contrary she had hidden herself inside the room
after having been seen by PW 5. Moreover, her
statement in the course of investigation that on
earlier occasions she had been paid Rs 50 by
the appellant and that she had tea with them on
the day of occurrence as well, creates a serious
doubt about the truthfulness of the version of
the prosecutrix and we find it unsafe to rely
upon her testimony to convict the appellant. Not
only this, the case of the prosecution even
otherwise does not appear to be credible and it
appears that the father of the prosecutrix, PW 2
on discovering that the prosecutrix was involved
with the appellant, after due deliberations,
lodged a report implicating the appellant.

15. PW 5 undoubtedly is a cousin of the
prosecutrix. He lived in the house adjacent to
the house of the appellant and it is the
14 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

prosecution case that anyone in the courtyard
of the appellant can be seen from the house of
PW 5. The case of the prosecution is that when
the prosecutrix first attempted to run away and
was in the courtyard, she was seen by PW 5.
The evidence is not clear as to whether PW 5
had identified the prosecutrix. There is,
however, no doubt that the prosecutrix had
seen PW 5. If PW 5 had identified the
prosecutrix there is no reason why he did not
immediately come to her rescue seeing that the
appellant had forcibly pushed her inside his
room. If he had not identified the girl, as being
the prosecutrix, there appears to be no reason
for his asking his brother PW 3 to call PW 2,
father of the prosecutrix. Learned amicus curiae
submitted that the prosecutrix having seen PW
5, hid inside the room of the appellant to avoid
identification, and this is what she stated in her
statement in the course of investigation. This
only fits in with the case of the defence that
though she was a consenting party, she was
afraid that her cousin, PW 5 may come to know
of the clandestine affair and expose her. PW 5,
it was submitted, called her father because he
may have thought that the father of the
prosecutrix should take whatever steps he may
consider necessary as his daughter was
involved. From the evidence of PW 2, the
informant, it appears that PW 5 did not disclose
to him the fact that the girl he had seen in the
house of the appellant was his daughter, yet
PW 2, the informant, called two other persons
and only thereafter entered the house of the
appellant. These facts do tend to support the
case of the defence that the prosecutrix having
been seen by PW 5 in the house of the
appellant despite best efforts to conceal herself,
the latter called her father and her father along
with PW 5 and two others thereafter went to the
house of the appellant.

16. So far as the last part of the prosecution
case is concerned, namely, the recovery of the
prosecutrix from the room of the appellant, the
evidence supports the case of the defence that
the prosecutrix was hiding behind the ladies
when her father and others came to her rescue.
The normal conduct of the prosecutrix in such
15 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

circumstances would have been to rush to the
persons who came to her rescue and not to
hide behind the two ladies said to be the wives
of the brothers of the appellant.

17. All these facts lead us to seriously doubt the
truthfulness of the case of the prosecution and
we are satisfied that the prosecution has failed
to prove its case beyond reasonable doubt.

The Supreme Court in the case of Amar Bahadur Singh

Vs. State of U.P. Reported in (2011) 14 SCC 671 has held as

under :

5. We find merit in this plea. We find that under
the circumstance the possibility that rape could
have been committed on her in the presence of
so many members in a small house is difficult to
believe. On the contrary the findings of the High
Court that the prosecutrix was a consenting
party appear to be correct and it was perhaps
when the accused and the prosecutrix had been
caught red-handed that the story of rape had
been cooked up, to salvage some of the family
honour. This is often the tendency in such
matters. The High Court has therefore gone
completely wrong in dismissing the appeal even
after its categorical observations.

The Supreme Court in the case of Kaini Rajan Vs. State of

Kerala reported in (2013) 9 SCC (Cri) 858 has held as under :

12. Section 375 IPC defines the expression
“rape”, which indicates that the first clause
operates, where the woman is in possession of
her senses, and therefore, capable of
consenting but the act is done against her will;

and second, where it is done without her
consent; the third, fourth and fifth, when there
is consent, but it is not such a consent as
excuses the offender, because it is obtained by
putting her on any person in whom she is
16 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

interested in fear of death or of hurt. The
expression “against her will” means that the act
must have been done in spite of the opposition
of the woman. An inference as to consent can
be drawn if only based on evidence or
probabilities of the case. “Consent” is also
stated to be an act of reason coupled with
deliberation. It denotes an active will in the
mind of a person to permit the doing of an act
complained of. Section 90 IPC refers to the
expression “consent”. Section 90, though, does
not define “consent”, but describes what is not
consent. “Consent”, for the purpose of Section
375, requires voluntary participation not only
after the exercise of intelligence based on the
knowledge of the significance and moral quality
of the act but after having fully exercised the
choice between resistance and assent.
Whether there was consent or not, is to be
ascertained only on a careful study of all
relevant circumstances. (See State of H.P. v.
Mango Ram.)

14. This Court examined the scope of Section
375 IPC in a case where the facts have some
resemblance with the one in hand. Reference
may be made to the judgment of this Court in
Deelip Singh v. State of Bihar. In that case, this
Court examined the meaning and content of the
expression “without her consent” in Section 375
IPC as well as whether the consent given by a
woman believing the man’s promise to marry
her, is a consent which excludes the offence of
rape. This Court endorsed the principle that a
misrepresentation as regards the intention of
the person seeking consent i.e. the accused,
could give rise to the misconception of fact.
While applying this principle to a case arising
under Section 375 IPC, this Court held that the
consent given pursuant to a false
representation that the accused intends to
marry, could be regarded as consent given
under misconception of fact. But a promise to
marry without anything more will not give rise to
“misconception of fact” within the meaning of
Section 90 IPC. This Court further held that:
(SCC p. 104, para 28)
“28. … If on facts it is established that at the
17 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

very inception of the making of promise, the
accused did not really entertain the intention of
marrying her and the promise to marry held out
by him was a mere hoax, the consent ostensibly
given by the victim will be of no avail to the
accused to exculpate him from the ambit of [the
second clause of Section 375 IPC].”

In the facts of that case, this Court held, that
the predominant reason which weighed with her
in agreeing for sexual intimacy with the
accused was the hope generated in her of the
prospect of marriage with the accused. The
Court held that she came to the decision to
have a sexual affair only after being convinced
that the accused would marry her and it is quite
clear from her evidence, which is in tune with
her earlier version given in the first information
report. The Court noticed that she was fully
aware of the moral quality of the act and the
inherent risk involved and that she considered
the pros and cons of the act.

15. In Ramdas v. State of Maharashtra this
Court held that: (SCC p. 179, para 23)
“23. … the conviction in a case of rape can be
based solely on the testimony of the
prosecutrix, but that can be done in a case
where the court is convinced about the
truthfulness of the prosecutrix and there exist
no circumstances which cast a shadow of doubt
over her veracity.”

16. Vijayan v. State of Kerala was a case where
the complaint was made by the prosecutrix after
the alleged commission of rape on her by the
accused. At the time of making the case, the
prosecutrix was pregnant for about seven
months. This Court did not place reliance on the
sole testimony of the prosecutrix. The Court
noticed that flaw that no DNA test was
conducted to find out whether the child was
born out of the said incident and the accused
was responsible for the said child.

17. K.P. Thimmappa Gowda v. State of
Karnataka was a case where the accused had
assured the prosecutrix that he would marry her
and had sexual affair, which was repeated on
several occasions as well. But he did not marry
and she became pregnant. That was a case
where there was delay of eight months in filing
18 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

the complaint. The accused was given the
benefit of doubt holding that it would not be
possible to conclude that the alleged sexual act
was committed without the consent of the
prosecutrix.

18. We have already referred to the evidence of
PW 2 to PW 4 and that their consistent version
is that PW 2 had previous acquaintance with the
accused being her elder brother’s friend for a
period of more than two years before the date of
incident. The place of the alleged incident and
the time is very crucial, so far as this case is
concerned. It was early morning at 8.30 a.m.
and the place of the alleged incident was on the
side of a public road. If she had made any
semblance of resistance or made any hue and
cry it would have attracted large number of
people from the locality. Further the first
information report, as already indicated, was
lodged after a period of 10 months of the
alleged incident. All these factors cast some
shadow of doubt on the version of PW 2.

The Supreme Court in the case of Alamelu and another v.

State, Represented by Inspector of Police reported in AIR 2011

SC 715 has held as under :

45. The High Court concluded that even if one
was to exclude the evidence given by PW3, the
conviction for abduction and rape by Sekar
could be recorded on the sole evidence of PW2.
Undoubtedly, the testimony of victim of sexual
assault stands at par with testimony of an
injured witness, and is entitled to great weight.
Therefore, corroboration for the testimony of the
victim would not be insisted upon provided the
evidence does not suffer from any basic
infirmities and the probability factors do not
render it unworthy of credence. This Court in
Rameshwar v. State of Rajasthan5declared that
corroboration is not the sine qua non for a
conviction in a rape case. In the aforesaid case,
Vivian Bose, J. speaking for the Court observed
as follows :-

19 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

“The rule, which according to the
cases has hardened into one of
law, is not that corroboration is
essential before there can be a
conviction but that the necessity of
corroboration, as a matter of
prudence, except where the
circumstances make it safe to
dispense with it, must be present
to the mind of the judge, … The
only rule of law is that this rule of
prudence must be present to the
mind of the judge or the jury as
the case may be and be
understood and appreciated by
him or them. There is no rule of
practice that there must, in every
case, be corroboration before a
conviction can be allowed to
stand.”

The aforesaid proposition of law has been
reiterated by this Court in numerous
judgments subsequently. These
observations leave no manner of doubt that
a conviction can be recorded on the sole,
uncorroborated testimony of a victim
provided it does not suffer from any basic
infirmities or improbabilities which render it
unworthy of credence.

46. In our opinion, the evidence of PW2
does not satisfy the aforesaid test. The
High Court erroneously concluded that the
girl had not willingly gone with Sekar. The
conclusion could only be recorded by
ignoring the entire evidence with regard to
the conduct of the girl from the time of the
alleged abduction till the time of the alleged
recovery. We have noticed earlier that she
did not make any complaint on so many
occasions when she had the opportunity to
do so. We may, however, notice that even
after the alleged marriage, the girl
continued to be a willing partner in the
entire episode. Even if the prosecution
version is accepted in its totality, it would be
established that the girl was staying with
Sekar (A1) from 31st July, 1993 till 10th
August, 1993. Even PW5, Thiru
20 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

Thirunavukarasu stated that Sekar (A1) had
brought the girl with him to his house and
told him that he had married her. They had
come to see Trichy and requested a house
to stay. This witness categorically stated
that he thought that they were newly
married couple. He had made them stay in
door No. 86 of the Police Colony, which was
under his responsibility. On 10th August,
1993, the police inspector, who arrived
there at 10.00 p.m. told this witness that
Sekar (A1) had married the girl by
threatening her and “spoiled her”. The girl,
according to the prosecution, was
recovered from the aforesaid premises.
Therefore, for six days, this girl was staying
with Sekar (A1).She did not raise any
protest. She did not even complain to this
witness or any other residents in the
locality. Her behaviour of not complaining to
anybody at any of the stages after being
allegedly abducted would be wholly
unnatural. Earlier also, she had many
opportunities to complain or to run away,
but she made no such effort. It is
noteworthy that she made no protest on
seeing some known persons near the car,
after her alleged abduction. She did not
make any complaint at the residence of
Selvi, sister of Sekar (A1) at Pudupatti.
Again, there was no complaint on seeing
her relatives allegedly assembled at the
temple. Her relatives apparently took no
steps at the time when mangalsutra was
forcibly tied around her neck by Sekar (A1).
No one sent for police help even though a
car was available. She made no complaint
when she was taken to the house of PW5,
Thiru Thirunavukarasu and stayed at his
place. Again, there was no protest when
Sekar (A1) took her to the police station on
5th day of the alleged abduction and told at
the Tiruchi Police Station that they had
already been married. The above behaviour
would not be natural for a girl who had been
compelled to marry and subjected to illicit
sexual intercourse.

21 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

24. If the facts and circumstances of the case are considered in

the light of the law laid down by the Supreme Court, in the above

mentioned cases, it would be clear that the testimony of the

prosecutrix is not trustworthy. The prosecutrix has stated that as

her mother was not well, therefore, She left her matrimonial house

for going to her parents home, however, the prosecution has not

examined the mother of the prosecutrix to prove that She was not

well, therefore, the prosecutrix had started from her matrimonial

house for coming to her parental house. Thus, the prosecution

failed to prove the very reason for the prosecutrix to leave her

matrimonial house. It is also admitted by the prosecutrix, that

when She boarded the bus, the appellant was already sitting in

the bus. Thus the possibility of leaving the matrimonial house

after due deliberations with the appellant, cannot be ruled out.

Further, it is the prosecution case, that for going to Babina, the

prosecutrix changed various buses at bus stops but neither She

made any complaint to the co-passengers or to the conductor.

Further, the appellant, took a room on rent at Babina, where the

prosecutrix stayed with the appellant for a period of one and half

months, and although she was not kept in confinement and was

free to move around, but neither she informed her in-laws, nor

informed any neighbor, although the room in which the prosecutrix

was staying was situated in a densely populated area. The

prosecutrix has also admitted that She used to meet the appellant
22 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

even in isolation. The prosecutrix has also admitted that her

husband used to beat her in inebriated condition. Therefore, the

possibility of leaving her matrimonial house, because of the

conduct of her own husband, cannot be ruled out. However, it

appears that later on, in order to save the pride of the family, a

false report of abduction and rape has been lodged.

25. Considering the facts and circumstances of the case, this

Court is of the considered opinion, that the testimony of the

prosecutrix is not trustworthy and She appears to be the

consenting party. Under these circumstances, this Court is of the

considered opinion, that the prosecution has miserably failed to

prove the guilt of the applicant on any count. Accordingly the

appellant is held not guilty of committing offence under Section

366 and 376(2)(n) of I.P.C.

26. Resultantly, the judgment and sentence 4/4/2017 passed by

the Special Judge [Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act], Shivpuri in Special Sessions Trial

No.7/2016, is hereby set aside.

27. The appellant is acquitted of all the charges.

28. The appellant is in jail. He be released from jail immediately,

if not required in any other case.

29. The appeal succeeds and is hereby Allowed.

(G.S. Ahluwalia)
Judge
Arun*
Digitally signed by ARUN KUMAR MISHRA
Date: 2018.07.23 18:15:53 +05’30’
23 Criminal Appeal No.954/2017
[Kalyan Pal Vs. State of M.P.]

HIGH COURT OF MADHYA PRADESH, JABALPUR,
BENCH AT GWALIOR

Criminal Appeal No.954/2017

………Appellant: Kalyan Pal

Versus

………Respondent: State of M.P.

JUDGMENT post for 23/07/2018

(G.S. Ahluwalia)
Judge
19/07/2018

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