Mukesh Kumar v. State of Chhattisgarh

First Information Report (Ex.P-8) was registered in Police Station Basantpur. The prosecutrix (PW-7) was sent to District Hospital, Rajnandgaon for medical examination vide Ex.P-5. Dr. Shail Khare (PW-4) examined the prosecutrix (PW-7) and gave report (Ex.P-SA), in which, she found abrasion 2cmsx2cms on left knee. The .->":,,A"'^ • •l'.:;;l'l':''>,'' ^sf,ffi| j •^J/ FmF^nirpRR i"T""~'"r°":"":'"l: prosecutrix (PW-7) was complaining of pain in breasts. The appellant was sent to District Hospital, Rajnandgaon for medical examination vide Ex.P-2A. Dr. V.P.Maheswar (PW-2) examined the appellant and gave repojl (Ex.P-2), in which, he found that the appellant could perform an act of sexual intercourse. In further investigation, spot-map was prepared Investigating Officer Sub-lnspector Sanjay Pundhir (PW-10) vide Ex.P-3. Another spot-map was prepared by Patwari Ashok Kumar ' ,•'; Sahu (PW-5) vide Ex.P-6. At the instance of the prosecutrix (PW-7), underwear of the appellant and pieces of broken bangles were seized from the place of occurrence vide Ex.P-4. The underwear of the appellant seized from the place of occurrence was sent District Hospital, Rajnandgaon for examination vide Ex.P-7. Report therefrom was received vide Ex.P-7A. Vaginal slides of prosecutrix (PW-7) were prepared and seized vide Ex.P-12. Petticoat of the prosecutrix (PW-7) was also seized vide Ex.P-12 itself. The seizedarticles were sent to Forensic Science Laboratory, Raipur for examination. Report (Ex. P-15) was received therefrom vide Ex.P-14. In Report (Ex.P-15), it is mentioned that articles A - vaginal slide of the prosecutrix (PW-7), B - petticoat of prosecutrix (PW-7) and F - underwear of the appellant contained human spermatozoa and stains of semen. After completion of the investigation, charge-sheet was filed- against the appellant in the Court of Chief Judicial Magistrate, Rajnandgaon, who, in turn, commitfed the case to the Court of Sessions Judge, Rajnandgaon, who conducted the trial and convicted and sentenced the appellant as mentioned above. 's •>*;s;. ^'"'.A,~:'^ k •""r'yj' ^asa i ^'E^ll:.*

3. Shri P.K.C.Tiwari, learned Senior Advocate with Shri B.L.Sahu, learned ^counsel the appellant argued that evidence of prosecutrix (PW-7) is wholly unreliable. The conduct of the prosecutrix is unnatural. According to the prosecutrix, appellant entered her-house and closed the door from inside. He further argued that when the appellant entered the house of the prosecutrix, at that time, Pushpa (PW-1) was standing outside the house of ,'; the prosecutrix. Pitamber, who is nephew of prosecutrix, had come to the house of the prosecutrix with oil, but the prosecutrix did not tell him anything about the incident. The house of the prosecutrix is situated adjacent to road, but prosecutrix did not raise any alarm or make any effort to come out from the house. Therefore, the evidence of the prosecutrix cannot be based for conviction. The conduct of the prosecutrix appears that she was a consenting party. Therefore, it is not safe to rely upon the sole testimony of the prosecutrix. The appellant deserves to be acquitted ofthe charges framed against him.

4. On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, opposed the above arguments and supported the impugned judgment passed by the learned Sessions Judge.

5. I have heard learned counsel for the parties at length and have also perused the. record ofSessions Trial No. 174/2003. IT"^'' 'l -'^ 4" ti|'Tir?m)?8ii

6. In Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), 2012 Cri. L.J. 693 (SC), the Hon'ble Supreme Court observed as follows: "Evidence of Prosecutrix: 15. It is a trite law that a woman, who is the victim of sexual assault, is notan accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than ?n injured witness as she suffers 'therefore, her evidence neednot from emotional injury. be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called 'Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. under Section 118 of Evidence Act and her evidence She is undoubtedly a competent witness 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. 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. 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. The court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewjalchand Jain,AIR 1990 SC 658 :