1. This criminal appeal has been preferred by the Appellant-State of M.P. against the judgment dated 08.09.1994 passed by First Additional Sessions
Judge, Tikamgarh in S.T.No.08/1993; whereby, the accused/respondents have been acquitted of the charges under Section 376 read with Section 34
of IPC.
2. Prosecution case in brief is that on 04.11.1992 at 8.45 in the morning complainant Bhagirath lodged an oral report at Police Station Prithvipur that in
the intervening nigh of 03/04-11-1992, his wife, two daughters, including the prosecutrix, were sleeping on the terrace. At about 2.30 in the night he
heard shouts of her daughter, Prosecutrix. They went to the place from where her daughter was shouting. They saw accused Virendra and
Dharmendra coming out from the liquor shop. From the same liquor shop their daughter Prabha came out crying and when his wife asked her
daughter she told that when she was going for nature’s call, at that time accused Virendra and Dharmendra both dragged her inside the liquor
shop. Dharmendra was guarding the door and Virendra committed rape on her. When hue and cry was raised by the prosecutrix complainant
Bhagirath and his wife reached at the spot and brought the girl back home. In the morning the incident was narrated to the villagers thereafter a
complaint was lodged at the police station.
3. On such complaint, lodged by the complainant at Police Station Prithvipur Crime No.138/92 under Section 376 read with Section 34 of IPC was
registered against the accused persons and investigation was triggered. During investigation prosecutrix was sent for medical examination. Statement
of witnesses was recorded and spot inspection was done. After investigation accused Virendra was found guilty for the charges punishable under
Section 376 and co-accused Dharmendra for the charges punishable under Section 376/34 of IPC for which charge-sheet was filed in the competent
Court. The accused persons abjured their guilt and pleaded innocence on the ground that they have been falsely implicated in the case.
4. Learned counsel for the State has contended that evidence of the prosecutrix clearly discloses that Virendra committed forceful sexual intercourse
with her and Dharmendra was guarding the door. It is also submitted that there is ample evidence to show that the age of the prosecutrix was 15-16
years at the time of incident. It is further contended that the evidence of prosecutrix is corroborated by the evidence of Doctor. The trial Court has not
appreciated the evidence on record produced by the prosecution in its proper manner and that the trial Court by mis-appreciating the evidence on
record has wrongly come to the conclusion of acquittal of the accused-respondents.
5. On the other hand, learned counsel appearing on behalf of the appellants has supported the impugned judgment and prayed for dismissal of the
appeal.
6. After hearing rival contentions and on perusal of entire record, there is only one question for determination i.e. whether the accused/respondents
have been wrongly acquitted by the trial Court from the charges under Section 376/34 (Gang Rape) ?
7. First of all we should consider about the age of the prosecutrix. Apex Court in the case of Jarnail Singh vs. State of Haryana (2013) 7 SCC 263 has
held that :
“22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the
Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :
“12. Procedure to be followed in determination of Age.―
…
…
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as
the case may be, the Committee by seeking evidence by obtaining â€
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be,
the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on
lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses
(a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as
the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix. The manner of determining age
conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. … â€
8. As per prosecutrix (PW-8) her age is about 15 years. She has told in the cross-examination that she do not remember her actual date of birth. Her
mother has said that she is about 15 years of age. Doctor who has examined the prosecutrix has deposed that as per her physical appearance she is
about 15 years of age but for confirmation of age she has been referred for dental and x-ray examination.
9. Head Master Premchand Jain (PW-7) on the basis of Admission Register (Ex.P13) has deposed that date of birth of prosecutrix was 13.04.1976.
10. Radiologist, Dr. S.R.S.Raghuwanshi (PW-6) has stated that fusion of radius bone in the wrist was incomplete, hence, on that basis age of the
prosecutrix was below 18 years. He has stated in his report (Ex.P-12) that fusion has not been started, hence, looking to the fact of incomplete fusion,
prosecutrix age comes in between 16 to 18 years.
11. In the present case, the prosecutrix was caught and raped by the accused persons. There is no evidence that prosecutrix was a consenting party
and consent cannot be presumed merely because she was in between 16 to 18 years of age. The evidence of prosecutrix and her father is trustworthy
and reliable. Before committing rape the prosecutrix was physically lifted by the accused persons and brought into the liquor shop (Kalari). The
evidence of the prosecutrix is truthful and plea of false implication is not tenable as there is no material to show that the prosecutrix had any enmity
with the accused persons.
12. Prosecutrix has deposed that it was night when she felt nature’s call for which she was going through road, accused Virendra and
Dharmendra suddenly came there from behind and gagged her mouth and caught hold her and brought her to the liquor shop. The said shop (Kalari) is
situated on the other side of road just opposite to her residence. Accused Virendra who is also called Pakchi has committed sexual assault (rape) on
her and other accused-Dharmendra, at that time gagged her mouth and shut the door of the shop guarding the entrance. After commission of rape
when hand of accused slipped from her mouth, her scream and shout were heard by mother and father of the prosecutrix who came to the place of
incident. Looking to the approaching of her mother and father towards place of incidence, accused persons fled away. Prosecutrix has further stated
that she narrated her mother and father about the incident. She went to lodge report in the police station alongwith her mother and father. FIR was
lodged by the father of the prosecutrix. Thereafter, she was sent to the hospital for medical examination.
13. Prosecutrix was medically examined by Dr.R.G.Johri who has stated that on external examination he has found that on her chest there were
numerous small linear abrasions and on examination of genitals, he found that her vagina was bleeding and hymen was torn. There was 1/2 cm. tear in
the posterior wall of vagina. She was complaining pain and blood traces were there all around genitals. Testimony of her father Bhagirath (PW-1) and
Dr.Johri corroborates testimony of prosecutrix and makes it trust worthy.
14. Testimony of prosecutrix is fully corroborated by testimony of her father-Bhagirath (PW-1). Bhagirath (PW-1) who had lodged report Ex.P-1 in
the police Station. FIR (Ex.P-1) is also corroborating the prosecutrix testimony in material particulars. There is no undue delay in lodging of FIR. In
FIR both the accused persons have been named and whole incident is narrated.
15. Supreme Court in the case of State Of Maharashtra vs Chandraprakash Kewal Chand Jain (1990) 1 SCC 550 has 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 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.
16. The Apex Court in the case State of Punjab vs. Ramdev Singh (2004) 1 SCC 421 has held that :
“14. 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 her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do.â€
17. Identical view has been expressed by the Supreme Court in the case of Ganga singh vs. State of M.P. (2013) 7 SCC 278 and has held that :
“11. Law is well- settled that the prosecutrix is a victim of, and not an accomplice in, a sex offence and there is no provision in the Indian Evidence
Act requiring corroboration in material particulars of the evidence of the prosecutrix as is in the case of evidence of accomplice. He submitted that the
prosecutrix is thus a competent witness under Section 118 of the Indian Evidence Act and her evidence must receive the same weight as is attached
to an injured witness in cases of physical violence.â€
18. Similar view has been expressed by the Supreme Court in the case of Mohd. Iqbal vs. State of Jharkhand (2013) 14 SCC 481 by holding that :
“17. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that
her statement be corroborated by the statements of other witnesses.â€
19. Supreme Court in the case of Rajendra vs. State of Himachal Pradesh (2009) 16 SCC 69 has expressed opinion that :
“19. In the context of Indian Culture, a woman â€" victim of sexual aggression â€" would rather suffer silently than to falsely implicate somebody.
Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the
real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman would put her
honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and
uncalled for. …â€
20. Apex Court in the case of Radhu vs. State of M.P. (2007 12 SCC 57 has held that :
“6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature
of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor
discrepancies and contradictions.
… â€
21. In the instant case, the prosecutrix named both the accused persons immediately after the occurrence with her. Her father and mother
immediately reached on the spot on her shout, she narrated act done by the accused persons. Medical evidence, statement of father and mother and
other evidence support her version, hence, the statement of the prosecutrix has been sufficiently corroborated.
22. Learned trial Court on the basis of insignificant contradictions and omissions which are purely trivial in nature has acquitted the
accused/respondents from the charges, while, it has been well settled in catena of judgments of the Apex Court that contradictions and omissions
which are trivial in nature have no value. In the testimony of the witnesses it is but natural to occur contradiction and omission because it is a human
nature that every time when the incident is narrated, some omissions, additions and improvement are but natural to creep in. Besides it, human
memory also plays a vital role in narrating the incident.
23. Learned trial Court has disbelieved the prosecution story on the ground that by shout of the prosecutrix villagers namely Ghasete @ Ghasiram and
Jashrath and some other persons had reached on the spot but prosecution has not interrogated those persons neither their statement has been recorded
nor brought before the Court, therefore, we come to a conclusion that the learned trial Court has wrongly appreciated the prosecution evidence in
favour of the accused/respondents. The findings of the trial Court are purely based on whims and surmises and is perverse, therefore, it has become
necessary to interfere with the impugned order under the appellate jurisdiction.
24. Apex Court in the case of Priya Patel vs. State of M.P. : AIR 2006 SC 2639 has held that :
“8. … when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be
deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually
inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each
person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed
rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. ""Common intention
is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it was done by him alone. ""Common intention"" denotes action in concert and necessarily
postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but
must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in
application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression ""in furtherance of
their common intention"" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an
intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged
commission of the offence punishable under Section 376(2)(g).â€
25. In this case actually rape was committed by Virendra @ Pakchi and other co-accused Dharmendra had put a gag on the mouth of the prosecutrix
and he also had shut the door and was guarding the entrance. It is established by the evidence of the prosecutrix that both the accused/appellants had
caught hold and lifted her to the liquor shot (Kalari). This clearly shows meeting of mind and common intention and in furtherance of that common
intention rape was committed upon the prosecutrix. So both the accused/appellants are equally liable for the offence of rape committed against the
prosecutrix.
26. The testimony of the prosecutrix and her father is corroborated by the medical evidence in material particulars which clearly proves commission of
offence, therefore, we do not agree with the findings of the trial Court that the accused/respondents have not committed offence of rape upon the
prosecutrix.
27. In case of Anjan Das Gupta Vs. State of West Bengal and others 2017 Cr.L.J. 529 SC, the Supreme Court has held that :
“If order of acquittal has been made on improper and erroneous appreciation of evidence, can be set aside by the appellate Court.â€
28. In cases of Bhagwan Jagannath Markad Vs. State of Maharashtra, 2017 Cri.L.J. 578 (SC a)nd Mrinal Das Vs. State of Tripura, AIR 2011 SC
3753, it is held by the Apex Court that:
“It is the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the
judgment of acquittal. If the order is clearly unreasonable, it is a compelling reason for interference. When the trial Court has ignored the evidence or
misread the material evidence or has ignored, the appellate Court is competent to reverse the decision of the trial Court depending on the materials
placed.â€
29. In case of C. Ronald and Anr. Vs. State of U.T. Of Andaman & Nicobar, 2012 Cri.L.J. 672, it is held that:
“There is no restriction on the powers of the appellate Court to convert an order of acquittal into a conviction.â€
30. Therefore, on the above discussions and in the light of above principles and also considering the facts and circumstances of the case, we are of the
considered opinion that in the present case, the testimony of the prosecutrix is wholly reliable. We find that the prosecutrix, aged above 16 years and
under 18 years was forcibly raped by the respondents in furtherance of their common intention. The respondents are liable to be convicted under
Section 376/34 of the Indian Penal Code.
31. The impugned judgment dated 08.09.1994 is hereby set-aside. We held accused-Virendra guilty for the charges punishable under Section 376 and
co-accused Dharmendra for the charges punishable under Section 376/34 of IPC. They are sentenced to undergo ten years RI with fine of Rs.
20,000/- which is to be paid to the prosecutrix. In default of payment of fine, the accused-respondents shall further undergo one year RI.
32. The respondents are on bail. Their bail bonds are cancelled and they are directed to surrender immediately before the concerned trial Court to
undergo the sentence, failing which the trial Court shall take appropriate action under intimation to the Registry.
33. Copy of this order be sent to the Court below for information and compliance. Record be also sent back.
Appeal stands allowed.
