DINESH JAISWALversusSTATE OF M. P.

                    [2010) 1 S.C.R. 1063


                     DINESH JAISWAL                            A
                             v.
                      STATE OF M.P.
             (Criminal Appeal No. 956 of 2005)

                    JANUARY 12, 2010
                                                               B
    [HARJIT SINGH BEDI AND J.M. PANCHAL,· JJ.]

    Penal Code, 1860:

      ss. 376, 323 and 506 - Rape - Conviction on the basis · c
 of evidence of prosecutrix - HELD: The test always is whether
 the given story prima facie inspires confidence - In the instant
 case, the story given by prosecutrix that the accused after
giving tangi blows on her head and hand raped her and when
 the accused was leaving she snatched tangi from him and 0
caused injuries to him does not inspire confidence - Her son
and another relative who had reached the spot did not support
her and were declared hostile - Even her husband who had
accompanied her to the police station was not examined in
court - Doctor was unable to confirm the factum of rape - E
Prosecution story that the accused, a youngman of 31 years
was overpowered by the prosecutrix, a much older woman of
42 years, is rather difficult to believe - Three injuries found
on hands of prosecutnx are simple in nature whereas out of
6 injuries found' on hand and head of accused, one is a
grievous injury - The case of the accused that he had gone F
to the house of the complainants to recover his cow and in a
quarrel both received injuries was not verified by investigating
officer - In the circumstances, some corroboration for the
statement of the prosecutrix was required - In this view of the
matter, judgments of courts below convicting and sentencing G
the accused are set aside and he is acquitted - Evidence -
Testimony of prosecutrix - Reliability of.


                           1063                                H
    1064   SUPREME COURT REPORTS                 [2010) 1 S.C.R.


A       Motila/ vs. State of Madhya Pradesh 2008 (10) SCR 983
    = (2008) 11 sec 20, referred to.
                        Case Law Reference:

        2008 (10 ) SCR 983         referred to           para 3
B
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 956 of 2005.

      From the Judgment & Order dated 24.11.2003 of the High
  Court of Madhya Pradesh Bench at Jabalpur in Criminal Appeal
C No. 1365 of 1998.

        Rameshwar Prasad Goyal for the Appellant.

          C.D. Singh, Sunny Choudhary and Shashank S. Parihar
    for the Respondent.
0
        The following Order of the Court was delivered

                              ORDER

        The facts leading to the appeal are as under :
E
       At about 4.00 P.M. on 8th July, 1987 the prosecutrix (PW-
  1) was alone in her house situated in Village Magrohar, Police
  Station Rampur Naiken. The appellant, who was known to her,
  entered the house and after having inflicted three tangi blows
F on her head and hands, raped her. The prosecutrix also, in
  defence, snatched the tangi from the appellant and caused
  several injuries on his head while he was leaving the room. As
  a result of the injuries suffered, both became unconscious. In
  the meanwhile, Sam pat the husband of the prosecutrix, arrived
G at the scene and she told him about what had happened. She
  also called Babula! (PW-2) her son and Shivbalak (PW-3) a
  distant relative, and they along with several other persons
  reached the spot. The prosecutrix thereafter accompanied by
  her husband Sampat, Babulal and the others afore referred
H lodged the First Information Report (Exhibit P-1) at Police
         DINESH JAISWAL v. STATE OF M.P.                  1065


 Chowki Khaddi on the same day at about 7.30 p.m. The ·A
 prosecutrix was also sent for a medical examination which was
 carried out the next day by Dr. Kalpana Ravi (PW-5), who found
three injuries on her and further recorded that as she was a
 married woman of 42 years, it had not been possible to give a
 categoric opinion about any recent sexual encounter. The B
appellant was also examined by Dr. S.S. Khare (PW-6) and
 his report Ex. P-6/A revealed six injuries, several of them on
the head including Injury No. 6, which was grievous as his teeth
 had been knocked out. On the completion of the investigation
a charge for offences punishable under Sections 376, 323 and      c
506 of the Indian Penal Code was framed. The appellant denied
the charge and was brought to trial. During the course of the
trial, PWs 2 and 3, Babula! and Shivbalak the son and relative
of the prosecutrix who had reached the place of incident, soon
after the alleged rape, were declared hostile and they gave a D
version contrary to what had been deposed to by the
prosecutrix. The trial court also found, endorsing the view of Dr.
Kalpana Ravi (PW-5), that as the prosecutrix was a married
woman, it was impossible to give a categoric opinion about any
recent sexual intercourse but relying on the sole testimony, of E
the prosecutrix, sentenced the appellant to undergo rigorous
imprisonment for 10 years under Section 376 of Indian Penal
Code and to other terms of imprisonment for the other offences.
The High Court dismissed the appeal and confirmed the
sentence. The matter is before us after the grant of special
leave.                                                             F

    · The learned counsel for the appellant has raised three
arguments during the course of hearing. He has first pointed
out that the two primary witnesses, both relatives of the
prosecutrix,' including Babula! her son had been declared         G
hostile and had not supported the prosecutrix's case and as
the story preferred by her was far fetched, it could not be
believed. It has also been submitted that the medical evidence
which could be a corroborating factor, too was uncertain, as
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    1066        SUPREME COURT REPORTS              [2010] 1 S.C.R.


A Dr. Kalpana Ravi had stated that the factum of rape could not
  be ascertained. The learned counsel has finally emphasised
  that the defence version that the appellant had reached the
  house of the prosecutrix to recover his cow and in a quarrel
  between them that followed, both had suffered injuries and that
B he had thereafter been falsely implicated in a case of rape. To
  highlight this argument, the learned counsel has referred us to
  the medical evidence of Dr. S.B. Khare (PW-6).

        Mr. C.D. Singh, the learned counsel for the respondent
  State has however submitted that the prosecutrix case was
C liable to be believed and has relied upon the judgment of this
  court in in [Motilal vs. State of Madhya Pradesh] 2008 SCC
  (Vol.11) 20. It has also been submitted that the evidence clearly
  showed that the appellant had been arrested from the house
  of the prosecutrix which proved the factum of rape.
D
        We have heard the learned counsel for the parties at
  length. We find that this case is rather an unusual one. The fact
  that the appellant was in the house of the prosecutrix is admitted
  on both sides. The prosecution story that the appellant a young
E man of 31 years had been overpowered by a much older
  woman is rather difficult to believe. The injuries received by the
  appellant are given below:-

           1.     Parted wound, whose shape is 1.5 c.m. X 1/5 c.m.
                  on the right side of the hand.
F
           2.     Swelled injury, whose shape is 1.5 c.m. X 1 inch,
                  which is on the upper side of the right hand.

           3.     Swelled injury, whose shape is 1/2" X 1/2", which
G                 is on the elbow of the left hand.

                  The injury of accused are given below :-

           1.     Parted wound, whose shape is 1 Y2 inch X 1/2 c.m.
                  X 1 c.m. on the middle of the head.
H
            DINESH JAISWAL v. STATE OF M.P.                1067


      2.     Parted wound, whose shape is 1" X 1/2 c.m. X 3         A
             m.m. on the front side of the head.

      3.     Parted wound, whose shape is 1/2" X 1/2" c.m. X
             3 m.m. on the right of the head.

       4.    Swelled injury, whose shape is 1/2" X 1/2".            B

      5.     Swelled injury, whose shape is 1" X 1/2" on the
             chin.

      6.     Two central incisers tooth and right canine tooth of
                                                                    c
             upper jaw were broken and the enamles were
             swelled.

      Injury No. 6 is a grievous one. As.per the prosecutrix she
 had caused these injuries to the appellant during the time of
 rape and thereafter that the accused had caused her three D
 minorinjuries as well whereas the case of the appellant is that
 he had gone to her house to recover his cow and in a quarrel
 that followed both had received injuries. In any case as the
 investigating officer had not. verified the statement of the
 appellant some corroboration for the prosecutrix's story was E
required. As already mentioned, her son Babulal and
Shivbalak, a relative, who had reached the place of incident, ·
were both declared hostile and did not support the prosecutrix.
We find that even her husband Sampat who had accompanied
her to the police station to lodge the report did not come into F
the witness box and the doctor was also unable to confirm the
factum of rape.

      Mr. C.D. Singh has however placed reliance on Moti Lat's
case (supra) to contend that the evidence of the prosecutrix was
liable to be believed save in exceptional circumstances. There G
can be no quarrel with this proposition (and it has been so.
emphasised by this Court time and again) but to hold that a
prosecutrix must be believed irrespective of the improbabilities
in her story, is an argument that can never be accepted. The
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    1068    SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A test always is as to whether the given story prim a facie inspires
  confidence. We are of the opinion that the present matter is
  indeed an exceptional one.

       As already mentioned above, in our opinion, the story
  given by the prosecutrix does not inspire confidence. We thus
8
  allow this appeal, set aside the impugned judgments and direct
  that the appellant be acquitted.

    R.P.                                          Appeal allowed.