Indian Penal Code, 1860 – Section 376 – Rape of a poor prosecutrix, a labourer by contractor – Loopholes in investigation – To acquit the accused solely on that ground would be adding insult to injury.
AIR 1995 SC 2472 : (1995) 5 SCC 518 : JT 1995 (6) SC 437 : 1995 (4) SCALE 752 : 1995 (3) RCR (Criminal) 526 : 1995 CriLJ 4173 : 1995 (3) Crimes 527 : 1995 (3) AICLR 162 : 1995 SCC (Cri) 977 : 1995 (Sup2) SCR 629 : 1995 (2) ECrC 585 : 1996 (2) ALT (Crl.) 485 : 1996 (1) BLJR 454 : 1995 AIR (SCW) 3644 : 1995 (2) RLW 135 : 1995 (3) All WC 1892 : 1995 JabLJ 689 : 1996 (1) PLJR 11 : 1995 Cri. L.R. 627 : 1995 CalCriLR 340
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 877 of 1995.
BENCH: AHMADI A.M. (CJ) SEN, S.C. (J)
PETITIONER: KARNEL SINGH Vs. RESPONDENT: THE STATE OF M.P.
J U D G M E N T
Special leave granted.
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 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, placed her on the ground, undressed her from below the 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 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 prosecutrix on that very night at about 9.00 p.m. and found that she was habituated to sexual intercurse. She did not find any marks of injury or struggle on the person of the prosecutrix. However, her 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, which examination confirmed the existence of semen stains. The prosecutrix in her evidence has stated that immediately 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 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 undergarment (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 ‘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 prosection sought to rely is of no avail to it. The vaginal swabs had semen stains. This is the state of evidence.
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 independent witnesses who could have corroborated the prosecutrix have, for reasons best known to the prosecution, not been called to the witness stand. The story regarding the recovery of the ‘Chaddi’ with semen stains is a concoction and the prsecution could not prove its recovery. In the circumstances he contended that the courts below were wrong in holding the case proved beyond reasonable doubt. He, therefore, urged that the conviction is unsustainable and the appeal must be allowed.
We have very carefully secutinized 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 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. But despite these deficiencies both the courts below have recorded a conviction. The question is: are they right?
Notwithstanding our unhappiness regarding the nature of investigation, 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 the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements 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.
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 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 the version of the prosecutrix. Her evidence shows that she had joined the two accused persons hardly three days before the incident as a labourer 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 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 companion but before the latter could have her, she ran away and narrated the incident to Multanabai and 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 belivered. There is no merit in this contention. The 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 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 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. As for corroboration the find of semen stains on her ‘saya’ and in her vagina lends sufficient assurance to her accusation. In