GANGA SINGHversusSTATE OF MADHYA PRADESH

                        [2013] 8 S.C.R. 400


A                         GANGA SINGH
                                 V.
                 STATE OF MADHYA PRADESH
               (Criminal Appeal No. 1118 of 2004)
                           JULY 4, 2013
8
        [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

       Penal Code, 1860 - s. 376 - Rape - Prosecution for -
  Acquittal of accused by trial court on the ground that sexual
c intercourse was with the consent of the prosecutrix - Convicted
  by High Court - Held: Evidence of the. prosecutrix is reliable
  - The same is corroborated by evidence of PW2, the FIR and
  the FSL report - Prosecution case is proved beyond
  reasonable doubt - Accused is liable to be convicted -
D Evidence Act, 1872 - s. 157.

       Evidence - Evidence of prosecutrix - Nature and
  evidentiary value of - Held: Prosecutrix is a competent
  witness uls. 118 of Evidence Act - Prosecutrix is a victim and
  not an accomplice - Therefore her evidence should receive
E the same weight as that of an injured witness - It does not
  require corroboration as in the case of evidence of an
  accomplice - Evidence Act, 1872 - s. 118.

       Criminal Trial - Defective investigation, unless casts a
F reasonable doubt on prosecution case, cannot be a ground
  to acquit the accused.

      Appellant-accused was prosecuted for offence of
  rape. The prosecution case was that the accused
  committed rape on PW5-prosecutrix. Prosecutrix,
G immediately after returning home, narrated the incident
  to PW2-her mother-in-law. One day after the incident,
  when her husband returned home, she lodged FIR. Since
  the prosecutrix was a married lady, medical report did not
                                400
H
  GANGA SINGH v. STATE OF MADHYA PRADESH               401


give any definite opinion as to whether she suffered          A
sexual intercourse. But the FSL report, confirmed spots
of semen and spermatozoa on the petticoat of the
prosecutrix. Trial court acquitted the accused u/s.376 IPC
on the ground that sexual intercourse was with the
consent of the prosecutrix. High Court convicted the          B
accused. Hence the present appeal.

    Dismissing the appeal, the Court

     HELD: 1. The prosecutrix is a victim of, and not an      C
accomplice in, a sex offence and there is no provision in
the Evidence Act requiring corroboration in material
particulars of the evidence of the prosecutrix as is in the
case of evidence of accomplice. The prosecutrix is thus
a competent witness under Section 118 of the Evidenct=        D
Act and her evidence must receive the same weight as
is attached to an injured witness in cases of physical
violence. [Para 10] [409-D-F]

     State of Maharashtra vs. Chandraprakash Kewalchand
Jain (1990) 1 SCC 550: 1990 (1) SCR 115 - relied on.          E

     2. PW-5 has categorically stated that the appellant
fell her down, covered her mouth with one hand and
restricted her hands with other hand and lifted her
petticoat and committed rape on her. It is true that on her   F
medical examination the next day, PW-9 did not find any
injury on the person of PW-5, but PW-5 has explained that
she fell on her back in the agricultural field which had a
smooth surface and there were wheat and mustard crops
in the field and this could be reason for her not suffering   G
injury. [Para 10] [409-F-G]

    3. In the absence of any question with regard to the
seizure of the blouse, dhoti and broken bangles in
presence of PW-5, omission of this fact from her evidence
is no ground to doubt the veracity of her evidence. If the    H
    402      SUPREME COURT REPORTS              [2013] 8 S.C.R.


A appellant's case was that PW-5 cannot be believed
  because she made this significant omission in her
  evidence, a question in this regard should have been put
  to her during her cross-examination. Section 146 of the
  Evidence Act also provides that when a witness is cross-
B examined, he may be asked any question which tend to
  test his veracity. Yet no question was put to PW-5 in
  cross-examination on the articles seized in her presence.
  [Para 11) [410-B-C, F]

          Browne vs. Dunn (1894) 6 R 67 - referred to.
c
       4. The evidence of PW-5, in the present case, is also
  corroborated by other evidence. Section 157 of the
  Evidence Act provides that in order to corroborate the
  testimony of a witness, any former statement made by
D such witness relating to the same fact at or about the time
  when the fact took place, or before any authority legally
  competent to investigate the fact may be proved. The
  evidence of PW-5 is corroborated by the evidence of her
  mother-in-law (PW-2) before whom she stated about the
E commission of the rape by the appellant soon after the
  incident the very same evening. The evidence of PW-5 is
  also corroborated by the FIR before the Investigating
  Officer, PW-10, before whom she lodged the complaint
  one day after the incident. [Para 12) [410-G-H; 411-A-B]
F      5. Though the medical evidence of PW-9 and the
  medical examination report do not give any definite
  opinion on whether or not PW-5 suffered any sexual
  intercourse, But the FSL report confirms that PW-5 had
  been subjected to sexual intercourse some time before
G she lodged the complaint in the police station. Hence, the
  forensic evidence is not entirely in conflict with the
  evidence of PW-5 so as to belie her story that she was
  raped by the appellant. [Para 13) [411-C, D-E]

H         6. As the appellant had not taken any defence of
 GANGA SINGH v. STATE OF MADHYA PRADESH                403


consent of PW-5, the trial court was not correct in A
recording the finding that there was consent of PW-5 to
the sexual intercourse committed by the appellant. The
trial court should have instead considered the defence
of the appellant that he had been falsely implicated
because of a quarrel between him and the husband of B
PW-5. The appellant has not produced any evidence in
support of this defence. As PW-2 has denied the
suggestion in this regard., the defence of the appellant
that he was falsely implicated on account of a quarrel
between the appellant and the husband of PW-5, cannot c
be accepted. [Para 14] [411-G-H; 412-A-B]

     7. It is not correct to say that the investigation by the
police was shoddy and hasty and there were defects in
the investigation and therefore benefit of doubt ~hould
be given to the appellant and he should be acquitted of D
the charge of rape. The prosecution is required to
establish the guilt of the accused beyond reasonable
doubt by adducing evidence. Hence, if the prosecution
in a given case adduces evidence to establish the guilt
of. the accused beyond reasonable doubt, the court E
cannot acquit the accused on the ground that there are
some defects in the investigation, but if the defects in the
investigation are such as to cast a reasonable doubt in
the prosecution case, then the accused is entitled to
acquittal because of such doubt. In the present case, the F
evidence of PW-5 as corroborated by the evidence of PW-
2 and the FIR establish beyond reasonable doubt that the
appellant has committed rape on PW-5 and thus the
appellant is not entitled to acquittal. [Para 15] [412-C-F]
                                                               G
     Narender Kumar vs. State (NCT of Delhi) (2012) 7 SCC
171: 2012 (6) SCR 148; Rai Sandeep alias Deepu vs. State
(NCT of Delhi) (2012) 8 SCC 21: 2012 (6) SCR 1153; Kamel
Singh vs. State of M.P. (1995) 5 SCC 518: 1995 (2) Suppl.
SCR 629; Wahid Khan vs. State of Madhya Pradesh (2010) H
    404      SUPREME COURT REPORTS                  [2013] 8 S.C.R.

A   2 SCC 9: 2009 (15) SCR 1207; State of Uttar Pradesh vs.
    Chhotey Lal (2011) 2 SCC 550: 2011 (1) SCR406- referred
    to.
                          Case Law Reference:
B         2012 (6) SCR 148           referred to         Para 5
          2012 (6) SCR 1153          referred to         Para 7
          1995 (2) Suppl. SCR 69     referred to         Para 7
          2009 (15) SCR 1207         referred to         Para 8
c
          2011 (1) SCR 406            referred to        Para 10
          1990 (1) SCR 115           relied on           Para 10
          (1894) 6 R 67              referred to         Para 11
D
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1118 of 2004.

        From the judgment and Order dated 26.06.2003 of the
    High Court of Madhya Pradesh, Jabalpur Bench, Gwalior in
E   Criminal Appeal No. 92 of 1990.

        Ravi Prakash Mehrotra (A.C.), Vibhu Tiwari, for the
    Appellant.

F        Siddhartha Dave, Jemtiben Ao, Vibha Datta Makhija, for
    the Respondent.

          The Judgment of the Court was delivered by

      A. K. PATNAIK, J. This is an appeal by way of special
G leave under Article 136 of the Constitution against the judgment
  dated 26.06.2003 of the Madhya Pradesh High Court, Gwalior
  Bench, in Criminal Appeal No.92 of 1990.

         2. The facts very briefly are that the informant lodged an
H   oral complaint on 22.12.1987 at 6.00 P.M. at Mangraoul Police
  GANGA SINGH v. STATE OF MADHYA PRADESH                 405
              [A.K. PATNAIK, J.]
Station, alleging that on 21.12.1987 at 6.30 P.M. in the evening A
when she had gone to the field of Tilak Singh at Naya Kunwa
to answer her natural call and was coming out from the field,
the appellant came and caught hold of her and fell her down,
gagged her mouth, lifted her petticoat and committed rape. She
returned home and told her mother-in-law about the incident and B
on 22.12.1987 when her husband, who works on a truck,
returned home, she has come to lodge the report in the police
station. The police registered the complaint as an FIR, got the
informant medically examined at 7.15 P.M. on the same day.
Dr. (Mrs.) Kusumlata of Government Hospital, Seondha, opined c
that as the informant is a married lady and was habitual to
intercourse, no definite opinion could be given on whether she
was subjected to any sexual intercourse. The petticoat and
vaginal smear slides (which were prepared and sealed) were
sent for further examination. The police then undertook the D
investigation, went to the place of occurrence on 23.12.1987
and seized a blouse and a dhoti and got prepared the map of
the site of occurrence and after recording statements of
witnesses and completing the investigation, submitted a charge-
sheet against the appellant under Section 376 of Indian Penal E
Code (for short 'IPC').

     3. The appellant denied the charge and Session Trial No.9/
1988 was conducted by the Sessions Judge, Datia. At the trial,
the informant was examined as PW-5, who stood by her story
in her complaint, the seizure witness was examined as PW-1, F
the mother-in-law was examined as PW-2, Dr. Kusumlata was
examined as PW-9 and the Investigating Officer was examined
as PW-10. The Sessions Judge, after considering the evidence
on record held that as PW-5 did not obstruct or resist the
appellant from doing the indecent act and no injury was caused G
on her person, PW-5 appears to have given her consent for the
sexual intercourse and acquitted the appellant of the offence
under Section 376, IPC, by judgment dated 30.11.1988.

    4. The judgment of the Sessions Judge was challenged        H
    406      SUPREME COURT REPORTS                    [2013] 8 S.C.R.


A   before the High Court by the State of Madhya Pradesh in
    Criminal Appeal No.92 of 1990. The High Court held in the
    impugned judgment that PW-5 has categorically deposed that
    the appellant had committed rape against her consent and she
    had also deposed that she had informed her mother-in-law after
B   returning home and this fact has been corroborated by her
    mother-in-law (PW-2) and, therefore, there was no reason to
    disbelieve the testimony of PW-5. The High Court further held 1
    that merely because there were some discrepancies in the
    deposition of PW-5, her testimony cannot be treated as doubtful.
C   The High Court concluded that the finding of acquittal recorded
    by the trial court was totally perverse and contrary to the
    evidence ori record and set aside the judgment of acquittal and
    convicted the appellant under Section 376, IPC, and sentenced
    him to seven years rigorous imprisonment, which was the
    minimum sentence for the offence of rape under Section 376,
0
    IPC.

         5. At the hearing, Mr. Ravi Prakash Mehrotra, learned
    Amicus Curiae appearing for the appellant, submitted that this
    Court has held in Narender Kumar v. State (NCT of Delhi)
E   [(2012) 7 SCC 171] that the prosecution has to prove its own
    case beyond reasonable doubt and cannot take support from
    the weakness of the case of defence and hence there must be
    proper legal evidence to record the conviction of the accused.
    He also cited Rai Sandeep alias Deepu v. State (NCT of
F   Delhi) [(2012) 8 SCC 21] in which the qualities of a 'sterling
    witness' have been described and it has been held that the
    evidence of only a 'sterling witness' can be accepted by the
    Court without any corroboration. He submitted that in this case
    this Court further held that the version of such a 'sterling witness'
G   on the core spectrum of the crime should remain intact in order
    to enable the Court trying the offence to rely on such core
    version.

          6. Mr. Mehrotra submitted that PW-5 was not such a
    'sterling witness' and her version that the appellant committed
H
  GANGA SINGH v. STATE OF MADHYA PRADESH                     407
              [A.K. PATNAIK, J.]
rape on her cannot be believed. He submitted that PW-5 has           A
falsely implicated the appellant in the offence of rape on
account of enmity between the appellant and the husband of
PW-5 .. He contended that the Doctor (PW-9) in her evidence
as well as the medical examination report (Ext.P-8) are clear
that there were no external injuries on the person of PW-5. He       B
submitted that PW-1, the seizure witness, has clearly proved
the seizure of bangles, dhoti and a blouse from the field of Tilak
Singh where the occurrence was alleged to have been taken
place and these articles were seized in presence of PW-5 and
yet PW-5 has omitted to mention about the seizure of these           c
articles from the place of occurrence in her evidence. He finally
submitted that the FIR (Ext.P-9) was scribed by V.S. Rathod
of the Police Chowki and not by PW-10, the Investigating
Officer. He argued that in fact PW-10 went on leave from
23.12.1987 and made a shoddy a'nd defective investigation
                                                                     0
and hastily submitted a charge-sheet against the appellant.· He
submitted that there was, therefore, reasonable doubt in the
prosecution case and the appellant was entitled to be acquitted
because of such doubt.

      7. Mr. Siddhartha Dave, learned counsel appearing for the      E
State of Madhya Pradesh, submitted that the testimony of PW-
5 that the appellant forcibly committed rape on her by felling
her on the ground is corroborated by PW-2 before whom she
made a statement soon after the incident as well as by the FIR
(Ext. P-9) lodged by her to PW-10 one day after the incident.        F
This is, therefore, not a case where the finding of guilt against
the appellant recorded by the High Court is on the sole
testimony of PW-5 as argued by Mr. Mehrotra. He cited Kamel
Singh v. State of M.P. [(1995) 5 SCC 518] for the proposition
that the prosecutrix of a sex offence cannot be put on par with      G
an accomplice whose evidence needs to be corroborated in
material particulars. He submitted that the nature of evidence
of the prosecutrix is such that no corroboration is necessary and
if the testimony of the prosecutrix is trustworthy and totality of
the circumstances appearing on the record of the case disclose       H
    408     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A that the prosecutrix does not have a strong motive to falsely
  implicate the person charged, the Court should ordinarily have
  no hesitation in accepting her evidence. He submitted that
  applying the aforesaid test to the evidence of PW-5 and
  considering all other circumstances in this case, the High Court
B was right in recording the conviction against the appellant.

       8. In reply to the submission of Mr. Mehrotra that the
  medical evidence of PW-9 as well as the medical examination
  report (Ext.P-8) did not disclose any injuries on the person of
  PW-5, Mr. Dave cited the decision of this Court in Wahid Khan
C v. State of Madhya Pradesh [(2010) 2 SCC 9] in which even
  though there was no medical evidence to corroborate the
  testimony of the prosecutrix, this Court held that such
  corroboration was not necessary where the evidence of the
  prosecutrix was otherwise consistent and stood corroborated
D by other circumstances and the FIR. In reply to the contention
  of Mr. Mehrotra that the appellant has been falsely implicated
  on account of enmity between the husband of PW-5 and the
  appellant, he submitted that PW-2 has very fairly stated in her
  evidence that there was enmity between the two and yet has
E stated that the complaint against the appellant has not been
  falsely made. He submitted that a very strong circumstance
  against the appellant is that after the incident on 21.12.1987
  the appellant absconded and he was arrested by the police after
  ten days on 31.12.1987.
F
       9. Mr. Dave submitted that the trial court has not
  appreciated the meaning of the word 'consent' used in the
  definition of 'rape' in Section 375, IPC. He cited State of Uttar
  Pradesh v. Chhotey Lal [(2011) 2 SCC 550] for the proposition
  that consent for the purpose of Section 375, IPC, requires
G voluntary participation not only after the exercise of intelligence
  based on the knowledge of the significance and moral quality
  of the act as also after full exercise of the choice between
  resistance and assent. He submitted that the evidence of PW-
  5 clearly establishes that there was no voluntary participation
H
 GANGA SINGH v. STATE OF MADHYA PRADESH                     409
             [A.K. PATNAIK, J.]
in the sexual intercourse by PW-5, and on the contrary, PW-5        A
could not physically resist the sexual intercourse forced on her
by the appellant. He submitted that the High Court therefore
rightly held the appellant guilty of the offence of rape and the
finding of guilt recorded by the High Court against the appellant
should not be disturbed by this Court in this appeal.               B

Findings of the Court

      10. Mr. Mehrotra is right in his submission that burden is
on the prosecution to prove beyond reasonable doubt that the
appellant is guilty of the offence under Section 376, IPC and       C
this burden has to be discharged by adducing reliable evidence
in proof of the guilt of the appellant. In the present case, the
prosecution seeks to establish the guilt of the appellant through
the evidence of PW-5, the prosecutrix. Law is well-settled that
the prosecutrix is a victim of, and not an accomplice in, a sex     D
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       E
must receive {he same weight as is attached to an injured
witness in cases of physical violence [see State of Maharashtra
vs. Chandrapraksh Kewalchand Jain (1990) 1 SCC 550).
Keeping this principle in mind, when we look at the evidence
of PW-5, we find that she has categorically stated that the         F
appellant fell her down, covered her mouth with one hand and
restricted her hands with other hand and lifted her petticoat and
committed rape on her. It is true that on her medical examination
the next day, PW-9 did not find any injury on the person of PW-
5, but PW-5 has explained that she fell on her back in the          G
agricultural field which had a smooth surface and there were
wheat and mustard crops in the field and this could be reason
for her not suffering injury.

     11. According to Mr. Mehrotra, however, PW-5 is not a
                                                                    H
    410       SUPREME COURT REPORTS                    [2013] 8 S.C.R.


A reliable witness as she has made a significant omission in her
  evidence by not stating anything about the seizure of the blouse,
  dhoti and broken bangles which were made in her presence.
  But we find that no question has been put to PW-5 in cross-
  examination with regard to seizure of the blouse, dhoti and
B broken bangles in her presence. If the appellant's case was that
  PW-5 cannot be believed because she made this significant
  omission in her evidence, a question in this regard should have
  been put to her during her cross-examination. To quote Lord
  Herschell, LC in Browne vs. Dunn ((1894) 6 R 67]:
c         " ...... it seems to me to be absolutely essential to the
          proper conduct of a cause, where it is intended to suggest
          that a witness is not speaking the truth on a particular point,
          to direct his attention to the fact by some questions put in
          cross examination showing that the imputation is intended
D         to be made, and not to take his evidence and pass it by
          as a matter altogether unchallenged, and then, when it is
          impossible for him to explain, as perhaps he might have
          been able to do if such questions had been put to him, the
          circumstances which it is suggested indicate that the story
E         he tells ought not to be believed, to argue that he is a
          witness unworthy of credit."

       Section 146 of the Indian Evidence Act also provides that
  when a witness is cross-examined, he may be asked any
F question which tend to test his veracity. Yet no question was
  put to PW-5 in cross-examination on the articles seized in her
  presence. In the absence of any question with regard to the
  seizure of the blouse, dhoti and broken bangles in presence
  of PW-5, omission of this fact from her evidence is no ground
G to doubt the veracity of her evidence.

        12. The evidence of PW-5, in this case, is also
  corroborated by other evidence. Section 157 of the Indian
  Evidence Act provides that in order to corroborate the testimony
  of a witness, any former statement made by such witness
H relating to the same fact at or about the time when the fact took
 GANGA SINGH v. STATE OF MADHYA PRADESH                      411
             [A.K. PATNAIK, J.]
place, or before any authority legally competent to investigate     A
the fact may be proved. The evidence of PW-5 is corroborated
by the evidence of her mother-in-law (PW-2) before whom she
stated about the commission of the rape by the appellant soon
after the incident the very same evening. The evidence of PW-
5 is also corroborated by the FIR (Ex.9) before the Investigating   B
Officer, PW-10, before whom she lodged the complaint one
day after the incident.

     13. Further, though the medical evidence of PW-9 and the
medical examination report Ex. P-8 do not give any definite
opinion on whether or not PW-5 suffered any sexual intercourse,     C
soon after the medical examination on 22.12.1987, the
petticoat and vaginal smear slides (which were prepared and
sealed) were sent for further examination and the report of
State Forensic Science Laboratory (Ex. P-15) confirms spots
of semen and spermatozoa. This evidence confirms that PW-           D
5 had been subjected to sexual intercourse some time before
she lodged the complaint in the police station on 22.12.1987.
Hence, the forensic evidence is not entirely in conflict with the
evidence of PW-5 so as to belie her story that she was raped
by the appellant.                                                   E

     14. We further find that the appellant has not taken a
defence in his statement under Section 313 of the Criminal
Procedure Code that the sexual intercourse was with the
consent of PW-5. Instead, he has denied having had any sexual       F
intercourse with PW-5 and has taken a stand that he has been
falsely implicated on account of a quarrel between him and the
husband of PW-5. Yet, the trial court held that there was proof
of sexual intercourse between the appellant and PW-5, but the
sexual intercourse was with the consent of PW-5. We are of          G
the considered opinion that as the appellant had not taken any
defence of consent of PW-5, the trial court was not correct in
recording the finding that there was consent of PW-5 to the
sexual intercourse committed by the appellant and should have
instead considered the defence of the appellant that he had
                                                                    H
    412      SUPREME COURT REPORTS                [2013] 8 S.C.R.


A been falsely implicated because of a quarrel between him and
  the husband of PW-5. We have, however, considered this
  defence of the appellant but find that except making a
  suggestion to PW-2, the appellant has not produced any
  evidence in support of this defence. As PW-2 has denied the
B suggestion, we cannot accept the defence of the appellant that
  he was falsely implicated on account of a quarrel between the
  appellant and the husband of PW-5.

         15. We are also unable to accept the submission of Mr.
    Mehrotra that the investigation by the police is shoddy and hasty
C   and there are defects in the investigation and therefore benefit
    of doubt should be given to the appellant and he should be
    acquitted of the charge of rape. The settled position of law is
    that the prosecution is required to establish the guilt of the
    accused beyond reasonable doubt by adducing evidence.
D   Hence, if the prosecution in a give'n case adduces evidence
    to establish the guilt of the accused beyond reasonable doubt,
    the court cannot acquit the accus~q on the ground that there
    are some defects in the investigation,.but if the defects in the
    investigation are such as to cast a, reasonable doubt .in the
E   prosecution case, then of course the accused is entitled to
    acquittal because of such doubt. In the present casfi!, as we
    have seen, the evidence of PW-5 a·s corroborated by the
    evidence of PW-2 and the FIR establish beyond reasonable .
    doubt that the appellant has committed rape' on PW-5 and.thus
F   the appellant is not entitled to acquittal.

       16. In the result, we are not inclined to interfere with th ·
  finding of the guilt recorded by the High Court against the
  appellant as well as the minimum sentence of 7 years
G imprisonment for the offence under Section 376 IPC imposed
  by the High Court. The appeal is accordingly dismissed. · ·

    K.K.T.                                     Appeal dismisseo.