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CASE NO.:

Appeal (crl.) 646 of 1994

PETITIONER:

Sudhansu Sekhar Sahoo

RESPONDENT:

State of Orissa

DATE OF JUDGMENT: 18/12/2002

BENCH:

Y.K. Sabharwal & K.G. Balakrishnan.

JUDGMENT:

J U D G M E N T

K.G. Balakrishnan, J.

This appeal is preferred against the judgment of the High Court of

Orissa, dated 27th July, .1993. The appellant was found guilty of offences

punishable under section 376 IPC and 342 IPC by the Sessions Court,

Kalahandi, and was sentenced to undergo imprisonment for seven years for the

offence under section 376 IPC and for three months for the offence under section

342 IPC. The conviction and sentence of the appellant was confirmed by the

High Court.

During the relevant time, the appellant was a District Malaria Officer.

The complainant, (hereinafter referred to as Ms. X) was a lady Supervisor

working in the Integrated Child Development Project. She was a post-graduate

and was about 29 years of age during the relevant time. She was staying in a

rented house owned by the local post master. The case of the prosecution was

that on 1.3.1987, PW-2, a female Anganwadi worker, along with her female

helper came to Ms. X at 6. P.M. in a jeep and told her that she was required

by District Social Welfare Officer. Ms. X accompanied them in the jeep which

was being driven by a driver and there was also a Malaria Inspector in the jeep.

PW-2 told Ms. X that she had come pursuant to the direction given by the

appellant and that she had been told to inform Ms. X that D.S.W.O. required her

presence. At about 7 P.M., all of them left in the jeep and when they reached a

small town, which was about 13 kms. away from the residence of Ms. X, the

appellant was waiting there. The further case of the prosecution is that when the

jeep reached that place, PW-2, (the female Anganwadi worker) and her helper

alighted from the jeep and Ms. X though wanted to alight, but she was prevented

from doing so and the appellant got into the driver's seat of the jeep and drove

away the vehicle speedily. The jeep driven by the appellant along with

Ms. X , the Malaria Inspector and the driver reached the house of the appellant

at about 11.30 P.M. The house of the appellant was about 120 kms. away

from the place of residence of Ms. X. Ms. X was told that D.S.W.O. was sitting

inside the house and the appellant invited Ms. X to his house. The bag of Ms. X

was carried inside the house of the appellant by a peon. The case of the

prosecution is that as soon as Ms. X entered the house of the appellant, the

appellant closed the door. Though Ms. X wanted to leave the place, she was not

allowed to go. She was offered dinner, but she declined to have it.

Thereafter, according to the prosecution, the appellant had forcible sexual

intercourse with Ms. X and she fell unconscious. When she regained her

senses, she found her clothes in disorder and discovered that she had

been ravished by the appellant. At about 7.30 A.M. on 2.3.1987, PW-3, the

driver along with one Junior Engineer came to the house of the appellant and

made enquiries about Ms. X. The Junior Engineer told that he came to know

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that Ms. X was ill and had come for treatment and that she was in the house of

the appellant. PW-3 brought an autorickshaw and in that autorickshaw Ms. X

proceeded to the bus stand and travelled in a bus and reached the house of

PW-4, a project officer. PW-4 found Ms. X in a disturbed mood and in spite of

repeated questions, Ms. X did not tell as to what had happened to her. In the

evening, PW-4 came back from her office and made further enquiries when she

found Ms. X crying and not taking any food. On the next morning, Ms. X told

everything about the incident that had taken place in the house of the appellant

and narrated how she was subjected to forcible sexual intercourse. PW-4

advised her to give a statement in writing. On 4.3.1987, PW-4, along with Ms.

X, went to the police station and handed over the written statement. As per the

direction of the Investigating Officer, Ms. X was sent for medical examination.

On the next day, she handed over the clothes worn by her at the time of

commission of offence by the appellant.

The Investigating Officer got the statements of the witnesses recorded

under Section 164 Cr.P.C. The Sessions Court after considering the evidence

came to the conclusion that the appellant had committed the offence of wrongful

confinement and rape. In the Sessions Court, the appellant admitted that Ms. X

was brought to his house in a jeep. According to the appellant, he was told that

a sick lady required treatment urgently. The Malaria Inspector and the driver

were present in the jeep and he took the sick lady in the jeep and when the jeep

reached his place of residence at about 11.30 P.M., he asked the Malaria

Inspector to take the sick lady to the hospital, but she requested that she may be

given shelter in his house. As it was difficult to find an alternative place, he

allowed the lady to stay in his house and asked the watchman to give her food.

The sick lady was found vomiting. The watchman gave her a separate room

and the appellant slept in his own room. The appellant completely denied the

offence of rape and wrongful confinement.

The Sessions Court after elaborate consideration of the matter came to

the conclusion that Ms. X had no motive to falsely implicate the appellant who

was a superior officer and that she being the prosecutrix in a rape case, her

evidence has to be given due weight. The High Court also agreed with the

conclusion reached by the Sessions Court.

The learned counsel who appeared for the appellant drew our attention to

the various circumstances which made the prosecution story highly improbable.

It was argued that Ms. X travelled nearly 120 kms. during night and reached the

appellant's house, but she had not raised any protest against the conduct of

the appellant till she filed her written statement before the police. It was also

pointed out that the evidence of the prosecutrix is not supported by any medical

evidence and there are so many other circumstances which would belie the

prosecution case.

Ms. X was staying near the place of her work in a rented house. When

the female Anganwadi worker along with her helper came to her and told that

she was required by her superior officer, she did not ask anything as to why her

presence was required during night. She readily followed them and went in a

jeep to the place which was about 13 kms. away. There, she met the appellant

and according to Ms. X, she was prevented from alighting from the jeep and the

appellant drove away the vehicle hastily in order to prevent Ms. X from getting

down from the vehicle. But she admitted during cross-examination that she had

not stated these facts in the written complaint made by her. Therefore, the

element of forcible taking away of Ms. X by the appellant is lacking in the

complaint. According to Ms. X, the appellant forcibly had sexual intercourse with

her though she resisted this physical onslaught and sustained injuries.

According to her, both nail marks and biting marks were there on her body.

Ms. X was examined by a doctor on 4.3.1987, but she was not satisfied with this

examination and she was again taken to another doctor on 10.3.1987 for medical

examination. The doctor, who examined her on 4.3.1987 was not examined and

the medical certificate also was not produced as an item of evidence. In the

medical certificate that was produced pursuant to the medical examination done

on 10.3.1987, there was no mention of nail marks or any other signs of

violence on her body. Thus, the corroborative evidence is lacking in this

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case. It is significant to note that according to Ms. X, her clothes had seminal

stains. She produced these clothes before the police, but these clothes did not

contain any stain either of blood or semen. Had there been any stains of semen

or blood on the clothes allegedly worn by her at the time of commission of

offence, it would have gone a long way to prove the case of the prosecution,

especially Ms. X being an unmarried woman.

That apart, there is no valid explanation offered by Ms. X to travel all the

way from her place of residence. Ms. X being an educated woman would have

naturally foreseen the impropriety of travelling along with other males in a jeep

for such a long distance during night. It is true, people act differently to same

situations. There are persons who are unduly timorous and imagine every path

beset with lions and there are others of more of robust temperament who fail

to foresee or non-challantly disregard even the most obvious dangers. Ms.

X, an unmarried woman travelled in a jeep for long distance in night and her

conduct appears to be unusual and there is no rational explanation as to what

urgent official work could have been there to undertake this nocturnal journey to

meet her superior officer.

It is also pertinent to note that the appellant and the Malaria Officer were

known to Ms. X. Two days prior to 2.3..1987, i.e. 28.2.1987, there was a circle

meeting where Ms. X was required in her capacity as lady supervisor. The

place of that meeting was 35 kms. away from her residence. Ms. X admitted in

her evidence that on the same day the appellant came to her house and

enquired why she had not attended the circle meeting and the appellant offered

help for her treatment. She also deposed that the appellant noted his address

in her diary. This shows the previous acquaintance of Ms. X with the

appellant. It is also significant to note that on the next day at about 7.30 A.M.,

the Junior Engineer and one driver came and enquired about Ms. X. How

these two persons came to know of the presence of Ms. X in the house of the

appellant, also is not known.

It is true that the evidence of the prosecutrix in a rape case is to be given

due weight. The sexual violence is a dehumanising act and it is an unlawful

encroachment into the right to privacy and sanctity of woman. The courts also

should be strict and vigilant to protect the society from such evils. It is in the

interest of the society that serious crimes like rape should be effectively

investigated. It is equally important that there must be fairness to all sides. In a

criminal case, the court has to consider the triangulation of interests. It

involves taking into account the position of the accused, the victim and his or her

family and the public. The purpose of criminal law is to permit everyone to go

about their daily lives without fear of harm to person or property.

The counsel for the respondent State contended that the evidence of the

prosecutrix , which is accepted by two courts, is sufficient to uphold the

conviction of the appellant for the offence of rape and it was argued that in rape

cases, the sole testimony of the victim is sufficient to enter a conviction.

It is true that the sole testimony of the victim of a sexual offence can be a

basis for conviction provided it is safe, reliable and worthy of acceptance. This

Court had occasion, in many cases, to consider the nature of evidence required

when the conviction mainly based on the testimony of the victim of the sexual

offence.

In Balwant Singh & Ors. Vs. State of Punjab (1987) 2 SCC 27, the

victim was a 19 years old student and the allegation was that when she was on

her way to the college, three accused persons forcibly took her away in a car to

the canal bank where she was subjected to sexual intercourse by the accused.

She fell unconscious and later she was found lying in a state of

unconsciousness under a Banyan tree by her father. There was no eye

witness. On medical examination, her hymen was found torn and there were

reddish abrasions on her breast. The police investigated the case and the case

was reported to be cancelled. The victim filed a private complaint and the

Magistrate committed the accused persons for trial to the court of sessions. The

Sessions Judge convicted the accused persons and this Court confirmed the

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conviction. This Court held that both the learned Additional Sessions Judge

and the High Court have believed the evidence of the prosecutrix and her father

and in their opinion there is no reason why their evidence should not be believed

and the conviction was thus solely based on the evidence of the prosecutrix.

In Rafiq vs. State of U.P. (1980) 4 SCC 262, a middle-aged bal sewika

in a village welfare organisation was raped by the appellant around 2.30 a.m.

when she was sleeping in a girls' school. On the next day, she reported the

matter to the mukhya sewika of the village. The counsel for the accused

contended that there was absence of corroboration of the testimony of the

prosecutrix and that there was absence of injuries on the person of the woman

and so the conviction was unsustainable. But this plea was rejected and this

Court held :

"The facts and circumstances often vary from case to case, the

crime situation and the myriad psychic factors, social conditions

and people's life-styles may fluctuate, and so, rules of prudence

relevant in one fact-situation may be inept in another. We cannot

accept the argument that regardless of the specific circumstances

of a crime and criminal milieu, some strands of probative reasoning

which appealed to a Bench in one reported decision must

mechanically be extended to other cases. Corroboration as a

condition for judicial reliance on the testimony of a prosecutrix is

not a matter of law but a guidance of prudence under given

circumstances."

In Krishan Lal vs. State of Haryana (1980) 3 SCC 159, the victim was

sleeping with her mother and other children outside her house on a hot night

and the two accused persons carried her away to a nearby godown under

intimidation and allegedly committed rape on the young woman. In the morning,

the mother of the victim found blood on the daughter's salwar and thereupon she

narrated the criminal assault of the accused on the previous night. The

counsel for the accused urged that the evidence of the prosecutrix, without

substantial corroboration, was inadequate to rest a conviction under Section 376

IPC. This plea was rejected and it was held by this Court as under :

"We must bear in mind human psychology and behavioural

probability when assessing the testimonial potency of the victim's

version. What girl would foist a rape charge on a stranger unless a

remarkable set of facts or clearest motives were made out? The

inherent bashfulness, the innocent naivete and the feminine

tendency to conceal the outrage of masculine sexual aggression

are factors which are relevant to improbabilise the hypothesis of

false implication. The injury on the person of the victim, especially

her private parts, has corroborative value..To forsake

these vital considerations and go by the obsolescent demands for

substantial corroboration is to sacrifice common sense in favour of

an artificial concoction called 'Judicial' probability. Indeed, the

Court loses its credibility if it rebels against realism. The law court

is not an unnatural world."

In State of Maharashtra vs. Chandraprakash Kewalchand Jain (1990)

1 SCC 550, a girl eloped with a 25 years old young man. They went to

Bombay and got married. Thereafter they came to a place near Nagpur and

checked in a lodge. The local Police Sub-Inspector came to know that the

couple was staying in the said lodge and he took them to the police station

where the husband was beaten up and the wife was threatened. The Sub-

Inspector registered a case against the husband alleging that he was found

misbehaving on a public street and put him in the lock-up. The girl was left in a

hotel. It was alleged that the Sub-Inspector visited the girl's room and

committed rape on her. In that case, this Court elaborately considered the

question whether conviction can be based on the sole testimony of the victim of

the sexual offence and held :

"Is it essential that evidence of prosecutrix should be corroborated

in material particulars before the court bases a conviction on her

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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..

A prosecutrix of a sex offence cannot be put on par with

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 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."

In State of H.P. vs. Lekh Raj (2000) 1SCC 247, this Court held that

"the hypertechnicalities or figment of imagination should not be allowed to divest

the court of its responsibility of sifting and weighing the evidence to arrive at the

conclusion regarding the existence or otherwise of a particular circumstance

keeping in view the peculiar facts of each case, the social position of the victim

and the accused, the larger interests of the society particularly the law and order

problem and degrading values of life inherent in the prevalent system. The

realities of life have to be kept in mind while appreciating the evidence for arriving

at the truth."

In State of Rajasthan vs. N.K. (2000) 5 SCC 30, this Court held :

"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. Her testimony has to be

appreciated on the principle of probabilities just as the testimony of

any other witness; a high degree of probability having been shown

to exist in view of the subject-matter being a criminal charge.

However, if the court of facts may find 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

her testimony."

It is well settled that in rape cases the conviction can be solely based on

the evidence of the victim, provided such evidence inspires confidence in the

mind of the court. The victim is not treated as accomplice, but could only be

characterised as injured witness. It is also reasonable to assume that no

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woman would falsely implicate a person in sexual offence as the honour and

prestige of that woman also would be at stake. However, the evidence of the

prosecution shall be cogent and convincing and if there is any supporting

material likely to be available, then the rule of prudence requires that evidence of

the victim may be supported by such corroborative material.

Unfortunately, the broad probabilities of the case were not considered

by the Sessions Court or the High Court in the instant case. Ms. X, though

asserted that she had sustained scratch injuries by nails and biting, her

medical examination did not reveal any such injuries. It is true that in view of

social conditions prevalent in India, there may be delay in giving the first

information of such an offence to the police. A rape victim may think seriously

before giving the information to the police about rape as the onslaught of a social

stigma may haunt her for life. Though the delay as such is not serious, but

while considering broad probabilities of the case, the delay in giving the

information to the police, in the instant case, also assumes some importance.

Though the past conduct of the prosecutrix is an irrelevant matter, in the instant

case, Ms. X asserted that she was a virgin till the alleged incident, but the

medical evidence supported by her physical features revealed that she was

habituated to sex. All these factors cast a serious doubt on the prosecution

case. Though there is no apparent motive for Ms. X to falsely implicate the

appellant, it may be that Ms. X must have changed her mind when she came to

know that others must have come to know of her conduct. So there are so many

loose ends in the prosecution case. On a consideration of the broad

probabilities of the case, we feel that various factors cast a serious doubt about

the genuineness of the case of Ms. X that she had been forcibly ravished by the

appellant. The appellant is certainly entitled to the benefit of doubt. Therefore,

we set aside the conviction of the appellant under section 376 and 342 IPC and

allow his appeal. The appellant was granted bail by this Court. The bail

bonds furnished by the appellant are cancelled.