Supreme Court of India
STATE OF M.P.versusDAYAL SAHU
- Citation
- 2005 INSC 456
- Decided
- 29 September 2005
- Disposal
- Appeal(s) allowed
- Bench
- H K SEMA
Holding
Non‑examination of the medical doctor and non‑production of his report do not constitute a fatal defect when the victim’s testimony and other evidence inspire confidence; thus the conviction under IPC s.376 stands.
Summary
The accused Dayal Sahu was convicted by a trial court for rape under IPC s.376 based on the testimony of the victim (prosecutrix) and corroborating statements of relatives, as well as forensic serology reports. On appeal, the High Court acquitted him, holding that the failure to produce and examine the doctor who medically examined the victim was a fatal lacuna, depriving the accused of a chance to cross‑examine. The Supreme Court examined whether non‑examination of a medical doctor and non‑production of the report necessarily defeats the prosecution when the victim’s statement and other witnesses inspire confidence. Relying on a series of precedents, the Court held that a conviction can rest on the victim’s testimony alone unless there are compelling reasons for corroboration, and that minor contradictions or the absence of a medical report do not create reasonable doubt. Consequently, the Court set aside the High Court’s acquittal, restored the trial court’s conviction and sentence, and ordered the accused to be taken back into custody.
Issues considered
- Whether the non‑examination of the doctor who medically examined the prosecutrix and non‑production of the medical report is a fatal defect that warrants acquittal.
- Whether the testimony of the prosecutrix, when it inspires confidence, can alone sustain a conviction for rape without corroboration.
- Whether minor contradictions in witness statements or absence of medical evidence create reasonable doubt.
Legislation cited
- Indian Penal Code, 1860s. 376
Subjects
rapeevidencemedical examinationnon‑production of reportbenefit of doubtcorroborationprosecutrix testimonyconvictionIPC 376
Judgment
STATE OF M.P. A
v.
DAYAL SAHU
SEPTEMBER 29, 2005
[H.K. SEMA AND G.P. MATHUR, JJ.] B
Penal Code, 1860:
s. 376-Nvn-examination of doctor who medically examined prosecutrix
and non-production of doctor's report-Held, would not cause fatal to C
prosecution case if statements of prosecutrix and other prosecution witnesses
inspire confidence-On facts, accused rightly convicted and sentenced by
trial court-Evidence.
Respondent stayed for the night at the house of his relative and ravished D
her in the guise of her husband while she was asleep. The victim awoke her
husband and other members who were sleeping outside the house. The
respondent confessed to them. The matter was reported to the police. The
investigation culminated in trial of the accused. The trial court after
examining the evidence of the prosecutrix (PWl), her husband (PW-2), her
father-in-law (PW-5), and the person who took her to the police station (PW- E
4) as also the report of the Serologist, held that the testimony of the witnesses
inspired confidence; and convicted and sentenced the respondent to seven years
RI u/s 376 IPC. On appeal by the accused, the High Court although rejected
his plea that the prosecution witnesses were not reliable, yet acquitted him
Qn benefit of doubt observing that non-examination of the doctor who medically F
examined the prosecutrix and not providing any opportunity to the accused to
cross-examine the doctor was a great and fatal lacuna in the prosecution case.
Aggrieved, the State filed the present appeal.
Allowing the appeal, the Court
HELD: 1.1. Non-examination of doctor and non-production of doctor's
G
report would not cause fatal to the prosecution case, if the statements of the
prosecutrix and other prosecution witnesses inspire confidence. The Court
while acquitting the accused on benefit of doubt should be cautious to see that
the doubt should be a reasonable doubt and it should not reverse the findings
703 H
704 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.
A of the guilt on the basis of irrelevant circumstances or mere technicalities.
1711-CI
Sheikh Zakir v. State of Bihar, (1983]4 SCC 10 and Ran) it Hazarika v.
State of Assam, (1998) 8 SCC 635, relied on.
B 1.2. A plethora of decisions by the Supreme Court would show that once
the.statement ofprosecutrix inspires confidence and is accepted by the courts
as such, conviction can be based only on the solitary evidence of the prosecutrix
and no corroboration would be required unless there are compelling reasons
which necessitate the courts for corroboration of her statement Corroboration
of testimony or' the prosecutrix as a condition for judicial reliance is not a
c requirement of law but a guidance of prudence under the given facts and
circumstances. It is also noticed that minor contradictions or insignificant
discrepancies should not be a ground for throwing out an otherwise reliable
prosecution case. (711-A-BI
D State of Punjab v. Gurmit Singh, (1996( 2 SCC 384 and State of
Rajasthan v. N. K., the accused, (2005) 5 SCC 30, relied on.
1.3. On facts, the testimony of prosecutrix-PW.1 that she has been
ravished by the accused at 4.00 A.M. on 1.4.1991 remains unimpeached. She
was subjected to cross-examination but nothing could be elicited to demolish
E the statement-in-chief. Her statement was corroborated by the statements of
PWs 2, 4 and 5 in material particulars, coupled with FSL report Ex. P-8 and
Ex. P-9, which has been accepted by the trial court and even by the High Court.
The High Court totally erred in law in recording the acquittal of the accused
by giving him benefit of doubt for non-examination of doctor, and thereby
committed grave miscarriage of justice. The order of conviction and sentence
F recorded by the Trial Court is restored. (711-D-E)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 8 of
1998.
From the Judgment and Orqer dated 18.12.96 of the Madhya Pradesh
G High Court in Crl. A. No. 1128of1993.
Dr. N.M. Ghatate and C.D. Singh for the Appellant.
Shakeel Ahmed for the Respondent.
H The Judgment of the Court was delivered by
STATEOFM.P. v. DAYALSAHU[SEMA,J.] 705
H.K. SEMA. J. The respondent-accused Dayal Sahu was put to trial A
under Section 376 !PC. He was convicted by the Trial Court and sentenced
to seven years imprisonment and a fine of Rs. 500, in default three months'
rigorous imprisonment. The High Court, on appeal preferred by the accused,
set-aside the conviction recorded by the Trial Court and acquitted the accused
(respondent herein) solely on the ground for non-examination of PW-9 Dr. B
V.M. Pursule, as according to the High Court, non-examination of PW-9
prejudiced the case of the accused for non-providing of an opportunity to the.
accused to cross-examine the doctor. Being aggrieved, this appeal is preferred
by the State of Madhya Pradesh by special leave.
Briefly stated the facts of the prosecution case are as follows:- C
In the night of 1.4.1991 the accused-respondent Dayal Sahu who was
a relative of complainant came to the village Mandvi with another man Jagdish
as guests. The prosecutrix-Santribai, wife of PW-2 Ramdas was sleeping
inside the house. Other family members wen; sleeping outside the house with
guests. At about 4.00 A.M. the accused entered into the room of prosecutrix D
in the guise of her husband and committed rape upon her by removing all her
clothes. On query by the prosecutrix as who he was, the accused pressed her
mouth; only then the prosecutrix came to know that the man who had
intercourse with her was not her husband. TI1ereafter, she awakes her husband
and other members. The husband of prosecutrix entered the room and lit
lantern and found the accused Dayal Sahu present there. The accused made E
a confessional statement for avoiding any event of demoral nature and to
avoid an apprehension of beating. The matter was reported to the Kotwar of
the village, who took the prosecutrix to the police station and reported the
matter on 1.4.1991 itself wherein the fact was recorded regarding the commission
of rape with Santribai. F
The prosecution examined as many as 14 witnesses. Amongst others,
the prosecutrix-Santribai was examined as PW-I. Ramdas, the husband of the
prosecutrix was examined as PW-2. Puslibai, the mother-in-law of the prosecutrix
was examined as PW-3, who was declared hostile by the Trial Court. She was
cross-examined by Public Prosecutor, when she admitted that she is hard of G
hearing. Deorao Kotwar, who took the prosecutrix to the police station and
got the report lodged, was examined as PW-4. Chindhiye, the father-in-law of
the prosecutrix was examined as PW-5. Dr.V.M. Pursule, who examined the
accused and on examination of his private parts found that the accused was
healthy and capable of committing sexual intercourse, was examined as PW- H
706 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
0
A 9. It appears that the prosecutrix was also medically examined by a lady doctor
and her slide, pubic hair, saree, underwear and petticoat, which she was
wearing at the time of incident, had been sent to F.S.L. Sagar for examination ..
The report ofF.S.L. was also received vide Ex.P.8 and Ex.P.9. According to the
report, white and hard stains were found on the underwear of the accused
and on the saree and petticoat of the prosecutrix. As per Ex.P-9 report, stains
B of semen and sperms were found on the underwear of accused.
Considering the fact that the point involved in this appeal is within a
narrow compass, it is not necessary to recite entire facts, which are admitted
by the Trial Court and confirmed by the High Court.
c In this case, the Trial Court examined the evidence of the P. W.1-
prosecutrix, P.W.2-husband, P.W.4-Deorao Kotwar and P.W.5- father in law
and came to a conclusion that their testimony inspires confidence and recorded
the conviction as aforesaid. As would appear from the judgment of the High
Court four contentions have been raised by the respondent herein before the
D High Court. These are:-
(I) That it is a case of high degree contradiction between the
statements of PW-I, 4 and 5 on account of which the prosecution
version becomes doubtful.
(2) The prosecutrix was medically examined but the doctor who
E examined her did not come in the witness box to prove the report
or the prosecution did not take care to examine the doctor.
(3) Serologist's report is on the record but the same was not proved.
(4) Prosecution witnesses were not reliable.
F The first contention has been repelled by the High Court as under:-
"So far as the first point is concerned, regarding contradictions between
the statements of PW-I, PW-4, and PW-5 are concerned, they are very
minor and such contradictions in the case of the nature cannot be
given any weightage. The trial Court has considered this aspect and
G I find no reason to disagree with the findings recorded by the trial
court.
Contention No. 3, the High Court has answered as under:-
"So far as the Serologist's report is concerned, that report is on record
H as Exs. P-8 and P-9."
STATEOFM.P. v. DAYALSAHU[SEMA, J.) 707
Contention No.4 has also been repelled by the High Court as under:- A
"The submission .that the prosecution witnesses were not reliable is
without any substance. The only thing which creates a doubt regarding
the defence version was not accepted as the fath~r of the appellant
Ranglal (DW-1) was a labourer and there is no explanation as to why
this person took a sum of Rs. I 0,000 to the house of the prosecutrix B
which was not explained and it was also not explained as to wherefrom
that money was obtained. Moreover, a labourer is not supposed to be
in possession of such an amount. The medical report is proved by
Shri S.R. Choudhary, Assistant sub Inspector of Police, who conducted
the investigation but this by itself is not sufficient as the accused- C
appellant was deprived of an opportunity to cross-examine the doctor
who conducted the medical examination but did not enter the witness
box to give evidence. Even the report which is on the record, mentions
that no definite opinion can be given regardi~g commission of rape.
I think it is a case where the appellant is entitled for benefit of doubt."
D
Regarding contention No. 2 - non-examination of a lady doctor who
medically examined the prosecutrix-PW.1, the High Court was of the opinion
that non-examination of doctor and non-providing of an opportunity to the
accused-person to cross-examine the doctor is a fatal one and is a great
lacuna in the prosecution case. On the basis of this view, the High Court
acquitted the accused on benefit of doubt. E
The view taken by the High Court, in our view, is perverse, erred in law
as well as on fact and contrary to the established law laid down by this Court
in a catena of decisions. The High Court having accepted the statements of
P. Ws. l, 2, 4 and 5 as having inspired confidence yet acquitted the accused
by giving him benefit of doubt in an offence of rape. F
In the case of State of Punjab v. Gurmit Singh, [1996] 2 SCC 384, it has
been held that a conviction can be founded on the testimony of prosecutrix
alone unless there are compelling reasons for seeking corroboration. It is
further held that her evidence is more reliable than that of an injured witness. G
It was pointed out in paragraph 8 at sec pp. 395-396 as under: -
"The courts must, while evaluating evidence, remain alive to the fact
that in a case of rape, no self-respecting woman would come forward
.I in a court just to make a humiliating statement against her honour H
708 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A 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 inherent
B 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
c 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, ~e viewed with doubt, disbelief or suspicion? The court
D 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 stateme:-it to base conviction of an accused. The evidence of
a victim of sexual assault stands almost on a par with the evidence
E
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
F 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
G
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
H law is introduced through a new form of testimonial tyranny mak,hg
STATEOFM.P. v. DAYALSAHU[SEMA,J.] 709
justice a casualty. Courts cannot cling to a fossil fonnula and insist A
upon corroboration even if, taken as a whole, the case spoken of by
the victim of sex crime strikes the judicial mind a probable".
In the case of Sheikh Zakir v. State of Bihar, [ 1983] 4 SCC 10, in
paragraph 8 at sec p.18 it has been held:-
B
"Insofar as non-production of a medical examination report and the
clothes which contained semen, the trial court has observed that the
comP.lainant being a woman who had given birth to four children it
was likely that there would not have been any injuries on her private
parts. The complainant and her husband being persons belonging to
a backward community like the Santhal tribe living a remote area could C
not be expected to know that they should rush to a doctor. In fact the
complainant has deposed that she had taken bath and washed her
clothes after the incident. The absence of any injuries on the person
of the complainant may not by itself discredit the statement of the
complainant. Merely because the complainant was a helpless victim D
who was by force prevented from offering serious physical resistance
she cannot be disbelieved. In this situation the non-production of a
medical report would not be of much consequence if the other evidence
on record is believable. It is, however, nobody's case that there was
such a report and it had been withheld."
E
In the case of Ranjit Hazarika v. State of Assam, [I 998] 8 SCC 635, it
was pointed out in paragraph 5 at sec. p 637 as under:-
"The argument of the learned counsel for the appellant that the
medical evidence belies that testimony of the prosecutrix and her
parents does not impress us. The mere fact that no injury was found F
on the private parts of the prosecutrix or her hymen was found to be
intact does not belie the statement of the prosecutrix as she nowhere
stated that she bled per vagina as a result of the penetration of the
penis in her vagina. She was subjected to sexual intercourse in a
standing posture and that itself indicates the absence of any injury G
on her private parts. To constitute the offence of rape, penetration,
however slight, is sufficient. The prosecutrix deposed about the
performance of sexual intercourse by the appellant and her statement
has remained unchallenged in the cross-examination. Neither the non-
rupture of the hymen nor the absence of injuries on her private parts,
therefore, belies the testimony of the prosecutrix particularly when we H
710 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
A find that in the cross-examination of the prosecutrix, nothing has been
brought out to doubt her veracity or to suggest as to why she would
falsely implicate the appellant and put her own reputation at stake.
The opinion of the doctor that no rape appeared to have been committed
was based only on the absence of rupture of the hymen arid injuries
on the private parts of the prosecutrix. This opinion cannot throw out
B an otherwise cogent and trustworthy evidence of the prosecutrix.
Besides, the opinion of the doctor appears to be based on "no
reasons".
In the case of State of Rajasthan v. N.K, the accused (2000) 5 SCC 30,
C it was pointed out in paragraph 9 at sec p. 38 as under:-
"Having heard the learned counsel for the parties we are of the
opinion that the High Court was not justified in reversing the
conviction of the respondent and recording the order of acquittal. It
is true that the golden thread which runs throughout the cobweb of
criminal jurisprudence as administered in India is that nine guilty may
D
escape but one innocent should not suffer. But at the same time no
guilty should escape unpunished once the guilt has been proved to
hilt. An unmerited acquittal does no good to the society. If the
prosecution has succeeded in making out a convincing case for
recording a finding as to the accused being guilty, the court should
E not lean in favour of acquittal by giving weight to irrelevant or
i11significant circumstances or by resorting to technicalities or by
assuming doubts and given benefit thereof where none exists. A
doubt, as understood in criminal jurisprudence, has to be a reasonable
doubt and not an excuse for a finding in favour of acquittal. An
unmerited acquittal encourages wolves in the society being on the
F
prowl for easy prey,. more so when the victims of crime are helpless
females. It is the spurt in the number of unmerited acquittals recorded
by criminal courts which gives rise to the demand for death sentence
to the rapists. The courts have to display a greater sense of
responsibility and to be more sensitive while dealing with charges of
G sexual assault on women. In Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat, [1983] 3 SCC 217, this Court observed that refusal to act
on the testimony of a victim of sexual assault in the absence of
corroboration as a rule, is adding insult to injury. This Court deprecated
viewing evidence of such victim with the aid of spectacles fitted with
lenses tinted with doubt, disbelief or suspicion."
H
STATEOFM.P. v. DAYALSAHU[SEMA,J.] 711
A plethora of decisions by this Court as referred to above would show A
that once the statement of prosecutrix inspires confidence and accepted by
the courts as such, conviction can be based only on. the solitary evidence
of the prosecutrix and no corroboration would be required unless there are
compelling reasons which necessitate the courts for corroboration of her
statement. Corroboration of testimony of the prosecutrix as a condition for
judicial reliance is not a requirement of law but a guidance of prudence under B
the given facts and circumstances. It is also noticed that minor contradictions
or insignificant discrepancies should not be a ground for throwing out an
otherwise reliable prosecution case. Non-examination of doctor and non-
production of doctor's report would not cause fatal to the prosecution case,
if the statements of the prosecutrix and other prosecution witnesses inspire C
confidence. It is also noticed that the Court while acquitting the accused on
benefit of doubt should be cautious to see that the doubt should be a
reasonable doubt and it should not reverse the findings of the guilt on the
basis of irrelevant circumstances or mere technicalities.
Reverting back to the facts of the case, the testimony of prosecutrix- D
PW. I that she has been ravished by the accused at 4.00 A.M. on 1.4.1991
remains unimpeached. She was subjected to cross-examination but nothing
could be elicited to demolish the statement-in-chief. Her statement was
corroborated by the statements of PWs 2, 4. and 5 in material particular,
coupled with FSL report Ex.P-8 and Ex.P-9, which has been accepted by the E
Trial Court and even by the High Court. The High Court was totally erred in
law in recording the acquittal of the accused by giving him benefit of doubt
for non-examination of doctor, thereby committed grave miscarriage of justice.
In the result, this appeal is allowed. The order of acquittal passed by
the High Court is set-aside. The order of conviction and sentence recorded F
by the Trial Court is restored. The respondent-accused Dayal Sahu is on baiL
His bail bonds and surety are .cancelled and he is directed to be taken back
into custody forthwith to serve out the remaining part of sentence. Compliance
report should be sent to this Court within one month.
RP. Appeal allowed. G
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