2006 Supreme(SC) 480

2006(4) Supreme 313
SUPREME COURT OF INDIA
(From Allahabad High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Om Prakash—Appellant
versus
State of Uttar Pradesh—Respondent
Criminal Appeal No. 629 of 2006
(Arising out of SLP (Crl.) No. 6111 of 2005)
Decided on 11-5-2006
Counsel for the Parties :
For the Appellant : M.P. Shorawala, Advocate.
For the Respondent : R.K. Singh, Jatinder Kumar Bhatia, Advocates.

IMPORTANT POINT
If a prosecutrix, victim of rape is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless same is shown to be infirm and not trustworthy.

Headnote:(i) Indian Penal Code, 1860—Section 376(2)(e)—Rape of pregnant woman—Conviction and sentence of 10 years imprisonment—Appeal—Husband of the informant-victim PW1 was arrested and informant with PW2, her husband’s brother came to Court for bail of her husband—Accused-appellant overpowered victim in Veranda of Zila Parishad and started raping her and victim when raised alarm, PW2 came and appellant was captured on spot—Evidence of victim was found credible and cogent which was supported by eye witness PW2—Victim of sexual assault is not to be treated as accomplice and her evidence does not require corroboration from any other evidence including evidence of doctor—Court should examine broader probabilities of case and not get swayed by minor contradictions or insignificant discrepancies—Conviction could be based on testimony of victim unless same was shown to be infirm and not trustworthy—If prosecutrix did not have a strong motive to falsely involve the person charged, Court should ordinarily have no hesitation in accepting her evidence—However no evidence that accused knew prosecutrix to be pregnant—Trial Court’s conclusion that there was full possibility of accused knowing if as doctor’s report disclosed six months pregnancy was unacceptable as mere possibility of knowledge was not sufficient—Conviction was liable to be recorded u/s 376(1) IPC and sentence of 7 years awarded.

       Held : It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour.(Para 13)

       The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab v. Gurmeet Singh (1996 (2) SCC 384).(Para 14)

       What is necessary is that the Court must be 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 Indian Evidence Act, 1872 (in short ‘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 own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses 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. This position was highlighted in State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 (1) SCC 550).(Para 15)

       (ii) Indian Penal Code, 1860—Section 228A—Disclosure of identity of victim of certain offences punishable—Restriction though would not relate to printing or publishing judgment by High Court or Supreme Court, name of victim should not be indicated.

       Held : One of the categories which attracts more stringent punishment is the rape on a woman who is pregnant. In such cases where commission of rape is established for operation of Section 376(2)(e) the prosecution has to further establish that accused knew the victim to be pregnant. In the instant case there was no such evidence led. The Trial Court came to the conclusion that there was “full possibility” of the accused knowing it. There is a gulf of difference between possibility and certainty. While considering the case covered by Section 376(2)(e) what is needed to be seen is whether evidence establishes knowledge of the accused. Mere possibility of knowledge is not sufficient. When a case relates to one where because of the serious nature of the offence, as statutorily prescribed, more stringent sentence is provided, it must be established and not a possibility is to be inferred. The language of Section 376(2)(e) is clear. It requires prosecution to establish that the accused knew her to be pregnant. This is clear from the use of the expression “knowing her to be pregnant”. This is conceptually different from there is a possibility of his knowledge or that probably he knew it. Positive evidence has to be adduced by the prosecution about the knowledge.(Para 17)