CRIMINAL APPELLATE JURISDICTION v. State of West Bengal

confirmed this claim with the other prosecution witnesses, PW 2, PW 3 and PW 4.

7. The victim lady in her written complaint as well as her deposition before the Court explained the course of delay to lodge the written complaint due to 8 shame and shyness. In her written complaint the victim lady stated to be present alone in the house and did not mention about breast feeding of her child. She did not mention the same during her examination-in-chief.

8. In her statement recorded under Section 164 of Cr.P.C. she stated while she was breast feeding of her female child, the appellant being her brother-in-law entered the room, through away the child on the floor and tied a cloth around her mouth. Thereafter the appellant laid her on cot and ravished her. After some time he fled.

9. In her cross-examination PW-1, the victim lady stated Parsuram to be the son of her uncle-in-law, who have filed a case against the appellant. She further stated that “at the relevant time I was milking my child with bosom and when the child was taken away to the floor she was crying. I did not stated about it in the FIR and before the Magistrate.” She further stated that none of the elder members of the extended family were present but the children were at home. Bhagbat and his elder brother’s child were almost of the same age.

10. On suggestion PW-1 denied that Bhagbat and his elder brother’s son were quarreling and she separated them and Bhagbat’s son fell on the ground and thereafter a quarrel ensued between Bhagbat and the victim lady.

11. During his cross-examination PW-5 who had been declared hostile by the prosecution stated a quarrel to have been occasioned between Bhagbat’s son and Bhagbat’s elder brother’s daughter. When PW-1 separated them, Bhagbat’s son fell down on which Bhagbat intervened and separated PW-1 by touching her hand and accusation was made that as bhasur, he could 9 not touch PW-1 and the same was reported to him by PW-1 and her husband and father-in-law. Bhagbat said that he did not commit any mischief intentionally. Neither PW-1 nor her husband or her father-in-law complained of rape. Dulal Gorain demanded Rs. 1000/- from Bhagbat for touching PW-1 being a ‘bhasur’ and if the demand was acceded to, there would have been no case.

12. PW-6 during his cross-examination stated that accused and Goutam are cousins. He also belonged to the same community. Dulal was uncle by social relation. It was complained by Dulal that as bhasur (accused) touched PW-1 when his son and his elder brother’s daughter were separated by PW-1 and Dulal demanded Rs. 1000/- for such act on the part of ‘bhasur’. Otherwise there would not have been a rape case against him which was a false case. PW-1 and her husband had disclosed the same cause.

13. PW-13, the Investigating Officer during his cross-examination stated that he did not note any house on the north of the “kuli road” and also on the eastern side, for which he noted the vacant space. After that no residence of people was mentioned. He did not note any house except the houses of the complainant and the accused near the “kuli road”. He did not ascertain the number of brothers of the complainant and also the number of brothers of her husband and her father-in-law. There was no note that there had been a land dispute in between father-in-law of the complainant and the father of the accused. He did not examine the Gram Panchayat member. The house of the complainant was in compact block along with those of other brothers and her father-in-law. He did not ascertain about any minor children in the 10 household. He examined the only female witness that of her mother-in-law. Complainant did not state that she was breast-feeding her child. She did not tell him that first of all she told the incident to her mother-in-law on her return from field. She told him when her husband returned, she did not divulge the incident to him or to her mother-in-law out of shame and on the next morning, she narrated the incident to them. Nonibala Gorai did not tell him that Saraswati told her that there was a scuffling and the accused forced her to get inside the room. She told him that Saraswati did not tell anything of the incident on that evening. As per statement of Dulal Gorai, the victim narrated the incident to him on the next morning. Goutam Gorai told him that on the next morning (18.11.06), victim told everything to her mother-in-law and that she did not reveal anything about the incident on the relevant date. He sent the wearing apparels to FSL under Memo No. C.M.R. 76/06 dt. 12.12.06, but did not receive the report. He also did not get the report of the semen. He did not examine Gita Mahali.

14. In Raju and Others vs. State of Madhya Pradesh1, the Hon’ble Supreme Court held as follows: “9. The observations in Gurmit Singh's case were reiterated in Ranjit Hazarika vs.State of Assam (1998) 8 SCC 635 in the following terms: “The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The 1 (2008) 15 SCC 133 11 inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”

10.The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. 12

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

15. In Sadashiv Ramrao Hadbe vs. State of Maharashtra and Anr.2, the Hon’ble Supreme Court held as follows: “9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”

16. In State of Rajasthan vs. Babu Meena3, the Hon’ble Supreme Court held as follows: “9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.”

17. The victim lady who has been subjected to physical torture and mental trauma being ravished by the perpetrator is genuinely considered to be a