KARNEL SINGHversusTHE STATE OF M.P.

                          KARNEL SINGH                                        A
                                v.
                         THE STATE OF M.P.

                           AUGUST 11, 1995

                [AM. AHMADI CJ. AND S.C. SEN, J.)                             B

     Indian Penal Code, 1860

      Section 376-Rape of a labourer by contractor-Convicted by Courts
below-Absence of marks of injury on the person of victim-Satisfactorily       C
explained-No reason to implicate the accused-Loopholes in investiga-
tion-Not to help the accused at the cost of poor prosecutrix-Conviction
upheld.

       According to the prosecution, the prosecutrix was working at a
factory of the appellant-contractor. On the morning of28.8.1987 she was       D
working inside the factory along with a male labourer. The appellant and
his companion came to the factory premises asked the male labourer to
fetch tea and on his departure the appellant lifted her bodily and took her
inside the machine room, placed her on the ground, undressed her from
below the waist and had sexual intercourse with her. His companion, since     E
acquitted, was asked to keep a watch outside the factory. After the appel-
lant had satisfied his lust and before his companion could take his turn
the prosecutrix ran through the opening in the compound wall of the
factory, searched out her husband, a rickshaw puller, and thereafter
lodged the First Information Report. The appellant was charged with and
tried for an offence under Section 376 IPC. He was convicted by the Trial     F
Court and his appeal was dismissed by the High Court.

       In this appeal it was contended that there was delay in filing the
F.I.R., there were no marks of injury on the person of the prosecutrix and
that she had falsely implicated the. appellant to grab money.              G

      Dismissing the appeal, this Court

      HELD : 1. The investigation officer had not taken the care expected
of him. He did not record the statements of the two witnesses nor did he
refer to the attachment of the 'Chaddi' in his oral evidence. That was a      H
                                  629
    630                   SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A   very vital piece of evidence to which little or no attention was paid. If the
    seizure of that article was properly proved, the article with semen stains
    would have lent strong corroboration to the evidence of the prosecutrix.
    There is no doubt that the investigation was casual and defective. On closer     ...,_
    scrutiny there is reason to think that the loopholes in the investigation
    were left to help the accused at the cost of the poor prosecutrix, a labourer.
B   To acquit the accused solely on that ground would be adding insult to
    injury. [632-G; 633-D]

          2.1. Merely because the complaint was lodged less than promptly
    does not raise the inference that the complaint was false. The reluctance
C   to go to the Police is because of society's attitude towards such a woman;
    it casts doubt and shame upon her rather than comfort and sympathise
    with her. Therefore, delay in lodging complaints in such cases do not
    necessarily indicate that her version is false. The possibility of tutoring is
    ruled out because the evidence does not show that her husband knew the
D   appellant and his companion before the incident. She too had started work
    hardly three days before and therefore she had no reason to falsely involve
    the appellant. No such 'reason is even suggested. She was a poor labourer
    hired by a contractor just a few days back and had no enmity with the
    appellant and his companion. Nor is there any such history so far as her
    husband is concerned. There is, therefore, no reason to doubt her word.
E   As for corroboration the find of semen stains on her 'saya' and in her
    vagina lends sufficient assurance to her accusation. [634-A-D]

           2.2. Immediately after the incident she did go in search of her
    husband who was a rickshaw puller, narrate to him the incident, go down
F   to the police station and then lodge the complaint. She has explained
    the absence of injuries by stating that she was laid on sand which was
    lying on the floor and, therefore, there were no marks of injury. The only
    explanation is by way of suggestion in the cross-examination of the
    prosecutrix to the effect that she was falsely implicating the appellant
    in order to grab money. Therefore, taking on overall vie"'. of the matter
G   it is safe to place reliance on the testimony of the prosecutrix. Both the
    courts below relied on her evidence and there is no reason to take a
    different view. [635-H; 636-A-B]

          State of Maharashtra v. Chandraprakash Kewal Chand Jain, [1990] 1
H   sec 550, relied on.
                   KARNELSINGH v. STATE [AHMADI, CJ.]                    631

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                 A
    877of1995.


-        From the Judgment and Order dated 23.4.94 of the Madhya Pradesh
    High Court in Cd.A.No. 170 of 1991.

         R.K. Mahajan and B.Y. Kulkarni for the Appellants.                    B

         Prashant Kumar and Uma Nath Singh for the Respondents.

         The Judgment of the Court was delivered by

         AHMADI, CJ. Special leave granted.                                    c
           The appellant challenges his conviction under Section 376, IPC, and
    the sentence and fine imposed on him. The facts leading to the conviction,
    briefly stated, are that the prosecutrix (PW 1) Panchbai, was working at a
    factory where she had reported for duty on the morning of 28.8.1987 D
    around 8.00 a.m. Her job was to lift boulders and place them within the
    factory premises. While she was working inside the factory, another
    labourer by the name Charan was also present. The appellant and his
    companion Pyaru came to the factory premises, asked Charan to fetch tea
    and on his departure the appellant lifted her bodily and took her inside.
    the machine room, place her on the ground, undressed her from below the E
    waist and had sexual intercourse with her. Pyaru, since acquitted, was
    asked to keep a watch outside the factory. According to the prosecution
    after the appellant had satisfied his lust and before Pyaru could take his
    turn the prosecutrix ran through the opening in the compound wall of the
    factory, searched her husband, a rickshaw puller, and thereafter lodged the F
    First Information Report (Ex.P-1). She was sent to the Hospital for medical
    examination where PW2 Dr. (Smt.) S. Rajpoot examined her and prepared
    the Report (Ex.P-3). Her evidence has been recorded in brief to the effect
    that she examined the pi:osecutrix on that very night at about 9.00 p.m. and
    found that she was habituated to sexual intercourse. She did not find any
    marks of injury or struggle on the person of the prosecutrix. However, her G
    Saya (petticoat) which was attached earlier in point of time and shown to.
    her bore semen stains. In her cross-examination she stated that she did not
    see any signs of forcible intercourse on the prosecutrix and was, therefore,
    not in a position to say whether or not she was the victim of rape. The
    garment of the prosecutrix was got examined by the Chemical Analyser, H
    632                   SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.
                                                                                           ...
A which examination confirmed the existence of semen stains. The
    prosecutrix in her evidence has stated that i.mmediately after she ran from
    the place of occurrence she met one Reza Multanabai, a co-labourer, and
    narrated to her the incident before going in search of her husband. Thus,
    at the earliest point of time she narrated incident to the aforesaid person,
    but unfortunately that person was not cited and examined as a witness, nor
B   was Charan produced as a witness. Thus, both these witnesses who could
    have corroborated the prosecutrix were not examined. In the course of
    investigation the under-garment (Chaddi) of the accused is stated to have
    been recovered. Dr. R.D. Sharma noted semen like stains on the garment
    and advised its examination by the Chemical Analyser. The seizure of the
c   'Chaddi' was, however, held not proved. Surprisingly, the Investigating
    Officer has not uttered a word about the seizure of this article. Therefore,
    this important piece of evidence on which the prosecution sought to rely
    is of no avail to it. The vaginal swabs had semen stains. This is the state of
    evidence.
D
          The learned counsel for the appellant-accused strongly urged that
    the investigation leaves much to be desired and the prosecution evidence
    does not carry the case beyond suspicion. He stated that the two inde-
    pendent witnesses who could have corroborated the prosecutrix have, for
    reasons best known to the prosecution, not been called to the witness stand.
E   The story regarding the recovery of the 'Chaddi' with semen stains is a
    concoction and the prosecution could not prove its recovery. In the cir-
    cumstances he contended that the courts below were wrong in holding t!ie
    case proved beyond reasonable doubt. He, therefore, urged that the con-
    viction is unsustainable and the appeal must be allowed.
F
        We have very carefully scrutinized the evidence having regard to the
  fact that (PW6) the investigation officer had not taken the care expected
  of him. He did not record the statements of the two witnesses -nor did he          ...
  refer to the attachment of the 'Chaddi' in his oral evidence. That ;was a
G very vital piece of evidence to which little or no attention was paid. H the
  seizure of that article was properiy proved, the article with semen stains
  would have lent strong corroboration to the evidence of the prosecutrix.
  There is no doubt that the investigation was causal and defective. But
  despite these deficiencies both the courts below have recorded a convic-
H tion. The question is : are they right ?
                KARNEL SINGH v. STATE [AHMADI, CJ.]                       633

       Notwithstanding our unhappiness regarding the nature of investiga-        A
tion, we have to consider whether the evidence on record, even on strict
scrutiny, establishes the guilt. In cases of defective investigation the court
has to be circumspect in evaluating the evidence but it would not be right
in acquitting an accused person solely on account of the defect; to do so
would tantamount to playing into the hands of the investigating officer if       B
the investigation is designedly defective. Any investigating officer, in fair-
ness to the prosecutrix as well as the accused, would have recorded the
statements of the two witnesses and would have drawn up a proper
seizure-memo in regard to the 'Chaddi'. That is the reason why we have
said that the investigation was slip shod and defective.
                                                                                 c
      We must admit that the defective investigation gave us some anxious
moments and we were at first blush inclined to think that the accused was
prejudiced. But on closer scrutiny we have reason to think that the
loopholes in the investigation were left to help the accused at the cost of
the poor prosecutrix, a labourer. To acquit solely on that ground would be       D
adding insult to injury.

      We have carefully examined the evidence of the prosecutrix, the
medical evidence of her examination and the evidence of the investigating
officer and we are inclined to think there is no risk involved in accepting E
the version of the prosecutrix. Her evidence shows that she had joined the
two accused persons hardly three days before the incident as a laborer
under a contractor. She was, therefore, in not too familiar an environment.
She was the only female worker just out of her teens. Besides, the two
accused persons and the prosecutrix there was one more person by the
                                                                               F
name Charan who was sent away to fetch tea. Taking advantage of the
prosecutrix being alone in their company the appellant picked her up and
took her inside the machine room, laid her on a pile of sand, removed her
saree and petticoat, and had sexual intercourse with her against her wish.
After he had satisfied his lust, he called his compa~ion but before the latter
could have her, she ran away and narrated the incident to Multanabai and G
then went in search of her husband, a rickshaw puller. After narrating the
incident to him, both of them went to the police station and lodged the
complaint, Exhibit P.1, at about 4.10 p.m. It was said that there was
considerable delay and sufficient time for tutoring and therefore her
evidence could not be believed. There is no merit in this contention. The H
    634                   SUPREME COURT REPORTS [1995) SUPP. 2S.C.R.

A submission overlooks the fact that in India women are slow and hesitant to
    complain of such assaults and if the.prosecutrix happens to be a married
    person she will not do anything without informing her husband. Merely
    because the complaint was lodged less than promptly does not raise the
    inference that the complaint was false. The reluctance to go to the police
B   is because of society's attitude towards such women; it casts doubt and
    shame upon her rather than comfort and sympathise with her. Therefore,
    delay in lodging complaints in such cases does not necessarily indicate that
    her version is false. The possibility of tutoring is ruled out because the
    evidence does not show that her husband knew the appellant and his
    companion before the incident. She too had started work hardly three days
c   before and therefore she had no reason to falsely involve the appellant. No
    such reason is even suggested. She was a poor labourer hired by a contrac-
    tor just a few days back and had no enmity with the appellant and his
    companion. Nor is there any such history so far as her husband is con-
    cerned. There is, therefore, no reason to doubt her word. As for corrobora-
D   tion the find of semen stains on her 'saya' and in her vagina lends sufficient
    assurance to her accusation. in State of Maharashtra v. Chandraprakash
    Kewal Chand Jain, [1990] 1 SCC 550, this Court speaking through one of
    us (Ahmadi, J) had on occasion to point out that a women who is a victim
    of a sexual assault is not an accomplice to the crime but is a victim of
E   another person's lust and therefore her evidence need not be tested with
    the same amount of suspicion as that of an accomplice. She is not in the
    category of a child witness or an accomplice and therefore the rule of
    prudence that her evidence must be corroborated in material particulars
    has no application, at the most the court may look for some evidence which
F   lends assurance.

         This is what this Court said in paragraph 16 of the judgment in the
    aforementioned case :


G           "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. com-
            petent witness under Section 118 and her evidence must receive
H           the same weight as is attached to an injured in cases of physical
                KARNELSINGH v. STATE [AHMADI, C.J.]                     635

        violence. The same degree of care and caution must attach in the A
        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
        leveled by her. If the court keeps this in mind and feels satisfied B
        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 cor-
        roboration. If for some reason the court is hesitant to place implicit
        reliance on the testimony of the prosecutrix it may look for C
        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 circumstan-
        ces of each case. But if a prosecutrix is an adult and of full D
        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 E
        no hesitation in accepting her evidence.

Applying the above test to the facts of the present case we are satisfied
beyond any manner of doubt that the prosecutrix, a victim of the crime,
had absolutely no reason whatsoever to falsely involve the appellant nor
did her husband have any reason to do so or tutor his wife to involve the
                                                                               F
appellant. No such suggestion was made to the prosecution witnesses in
cross examination nor in there any evidence on record in that behalf. The
prosecutrix is a 'poor labourer who was toiling to earn her livelihood to
augment the family income. She was working in the factory since the last
few days only and the appellant and his companion, taking advantage of         G
the situation, drove away Charan by asking him to fetch tea and after he
left the appellant violated her person. The find of semen stains on the
petticoat and in the vagina lend assurance to the story narrated hy the
prosecutrix. The submission that there was delay in lodging the complaint
has to be stated to be rejected for the simple reason that immediately after   H
    636                    SUPREME COURT REPORTS [1995] SUPP.2 S.C.R.

A the incident she had to go in search of her husband who was a Rickshaw
    Puller, narrate to him the incident, go down to the police station and then
    lodge the complaint. She has explained the absence of injuries by stating
    that she was laid on minute sand no marks of injury. The only explanation
    is by way of suggestion in the cross-examination of the prosecutrix to the
    effect that she was falsely implicating the appellant in order to grab
B   money. Therefore, taking an overall view of the matter we are satisfied that
    it is safe to place reliance on the testimony of the prosecutrix. Both the
    courts below relied on her evidence and we see no reason to take a
    different view.

C           For the above reasons we see no merit in this appeal and dismiss the
    same.

    G.N.                                                      Appeal dismissed.