VINOD KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellants aggrieved by their conviction in Sessions Trial No. 149 of 1985 in the Court of Sessions Judge, Hoshangabad vide judgment dated 1-5-1986, have preferred this appeal. Both the appellants have been convicted under Section 376 of the Indian Penal Code and sentenced to 10 years R.I. with a fine of Rs. 500/- each and in default of payment of fine, both have been directed to undergo R.I. for six months.

(2.) Radhabai is a resident of Pandri Naka, Raipur. She was married to one Motiram. On 156-1985, she had come to Itarsi from Nagpur. She arrived at Itarsi Railway Station at 4 P.M. and there she was met by these appellants who had taken her in a rickshaw. After wandering in the city with the prosecutrix, these appellants are alleged to have taken her to a lonely place where they committed gang-rape upon her. Radhabai (P.W. 4) in the police station, Itarsi lodged a report Ex. P.-8. According to this document Ex. P.-8, she was taken in ricksha and at 12 P.M. in the night both the appellants, whose names have been given in the first information report as Vinod and Shankar, are alleged to have shown a knife and under the threat thereof, both are alleged to have committed gang rape. In Kabristan, which was a lonely spot, these appellants asked her to disrobe and when she became naked, both the appellants then committed rape with the prosecutrix. Shankar is alleged to have raped her again. After abandoning her alone, the appellants escaped and the prosecutrix Radhabai disclosed the incident to one Kallu Musalman. But by that time, two police constable happened to pass by that way and she was taken to police station where she lodged a report at 12.30 A.M. on 16-61985. This report was lodged promptly only after 2.5 hours after the commission of crime. During the trial, the prosecution examined Dr. Mrs. Vimla Tikariya (P.W. 1) who opined that the prosecutrix is habituated of sexual intercourse. Dr. M.L. Batra (P.W. 2) examined the appellants and found that they were capable of performing sexual intercourse. Rajesh Kumar (P.W. 3) was declared to be hostile. Prosecutrix Radha Bai (P.W. 4) described the incident before the trial Judge and named these two appellants to be the rapers who had committed gang-rape in the night of 15-6-1985. Both the appellants have been identified by the prosecutrix during the trial. Previous to this, an identification parade was conducted by Tahsildar on 18-6-1985 in which Radha Bai had positively identified the appellants, but this identification parade was not proved during the trial as the Tahsildar conducting the identification parade was not examined by the prosecution. Mela Singh (P.W. 7), a hotel owner at Itarsi, who had identified the appellant Vinod as the person taking the girl in the rickshaw around the city. Mahavir (P.W. 8) another rickshaw puller, was declared hostile. J.N. Singh Chouhan (P.W. 9) Investigating Officer has proved different stages of the investigation. Appellants while questioning under Section 313, Cr. Pro. Code have disclosed that they had no knowledge with regard to the incident. The learned trial Judge has placed explicit reliance upon the testimony of Radhabai, Prosecutrix and has this convicted the appellants as indicated above.

(3.) Shri D.C. Jam, learned counsel for the appellants, has contended at the bar that the material witness Kallu Musalman and the Tahsildar have not been examined by the prosecution during the trial, that there is no corroboration of the testimony of the prosecutrix present in the record; that Dr. Vimla Tikariya (P.W. 1) has not found any element in physical examination of the prosecutrix which may indicate that she was subjected to sexual intercourse and that no injuries were found upon the person of the prosecutrix etc. Shri B.P. Singh, Govt. Advocate, for the State, controverted these arguments and contended that all these evidence were not necessary and that no corroboration of the testimony of the prosecutrix was necessary under any law. Keeping in view the contentions of Shri Jam, I shall deal with all the arguments addressed at the bar at seriatim. If the testimony of the prosecutrix in a case of gang-rape is required to be corroborated; on principle the evidence of a victim of sexual assault stands on par with the evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight. In a rape case, the eye-witness account can only be rendered by the prosecutrix and non else. It is a settled law that corroboration is not the sine qua non for a conviction in a rape case. Apex Court of the country in the case of Bhoginbhai Hirjibhai v. State of Gujarat1, has settled the law in the following words; Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault 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 to justify the charge of male chauvinism in a male dominated society.T