Page 1

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1118 of 2004  

Ganga Singh                                                     …… Appellant

Versus

State of Madhya Pradesh                                  …..  Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article  

136  of  the  Constitution  against  the  judgment  dated  

26.06.2003  of  the  Madhya  Pradesh  High  Court,  Gwalior  

Bench, in Criminal Appeal No.92 of 1990.

2. The facts very briefly are that the informant lodged  

an oral complaint on 22.12.1987 at 6.00 P.M. at Mangraoul  

Police Station, alleging that on 21.12.1987 at 6.30 P.M. in the  

evening when she had gone to the field of Tilak Singh at

Page 2

Naya Kunwa to answer her natural call and was coming out  

from the field, the appellant came and caught hold of her  

and fell her down, gagged her mouth, lifted her petticoat and  

committed rape.  She returned home and told her mother-in-

law  about  the  incident  and  on  22.12.1987  when  her  

husband,  who  works  on  a  truck,  returned  home,  she  has  

come to lodge the report in the police station.  The police  

registered  the  complaint  as  an  FIR,  got  the  informant  

medically examined at 7.15 P.M. on the same day.  Dr. (Mrs.)  

Kusumlata of Government Hospital, Seondha, opined that as  

the  informant  is  a  married  lady  and  was  habitual  to  

intercourse, no definite opinion could be given on whether  

she was subjected to any sexual intercourse. The petticoat  

and vaginal smear slides (which were prepared and sealed)  

were  sent  for  further  examination.   The  police  then  

undertook the investigation, went to the place of occurrence  

on  23.12.1987  and  seized  a  blouse  and  a  dhoti  and  got  

prepared  the  map  of  the  site  of  occurrence  and  after  

recording  statements  of  witnesses  and  completing  the  

investigation,  submitted  a  charge-sheet  against  the  

2

Page 3

appellant under Section 376 of Indian Penal Code (for short  

‘IPC’).

3. The appellant  denied the charge and Session Trial  

No.9/1988 was conducted by the Sessions Judge, Datia.  At  

the trial, the informant was examined as PW-5, who stood by  

her story in her complaint, the seizure witness was examined  

as  PW-1,  the  mother-in-law  was  examined  as  PW-2,  Dr.  

Kusumlata  was  examined  as  PW-9  and  the  Investigating  

Officer was examined as PW-10.  The Sessions Judge, after  

considering the evidence on record held that as   PW-5 did  

not obstruct or resist the appellant from doing the indecent  

act and no injury was caused on her person, PW-5 appears to  

have  given  her  consent  for  the  sexual  intercourse  and  

acquitted the appellant  of  the offence under  Section 376,  

IPC, by judgment dated 30.11.1988.

4. The judgment of the Sessions Judge was challenged  

before the High Court by the State of Madhya Pradesh in  

Criminal Appeal No.92 of 1990.  The High Court held in the  

impugned  judgment  that  PW-5  has  categorically  deposed  

3

Page 4

that the appellant had committed rape against her consent  

and  she  had  also  deposed  that  she  had  informed  her  

mother-in-law after returning home and this fact has been  

corroborated  by  her  mother-in-law  (PW-2)  and,  therefore,  

there was no reason to disbelieve the testimony of PW-5.  

The High Court further held that merely because there were  

some discrepancies in the deposition of PW-5, her testimony  

cannot be treated as doubtful.   The High Court concluded  

that the finding of acquittal recorded by the trial court was  

totally perverse and contrary to the evidence on record and  

set  aside  the  judgment  of  acquittal  and  convicted  the  

appellant  under  Section  376,  IPC,  and  sentenced  him  to  

seven years rigorous imprisonment, which was the minimum  

sentence for the offence of rape under Section 376, IPC.

5. At the hearing, Mr.  Ravi Prakash Mehrotra,  learned  

Amicus Curiae appearing for the appellant,  submitted that  

this  Court  has  held  in  Narender  Kumar  v.  State  (NCT  of   

Delhi) [(2012) 7 SCC 171] that the prosecution has to prove  

its  own  case  beyond  reasonable  doubt  and  cannot  take  

support from the weakness of the case of defence and hence  

4

Page 5

there must be proper legal evidence to record the conviction  

of the accused.  He also cited  Rai Sandeep alias Deepu v.  

State (NCT of Delhi) [(2012) 8 SCC 21] in which the qualities  

of a ‘sterling witness’ have been described and it has been  

held that  the evidence of only a ‘sterling witness’  can be  

accepted  by  the  Court  without  any  corroboration.   He  

submitted that in this case this Court further held that the  

version of such a ‘sterling witness’ on the core spectrum of  

the crime should remain intact in order to enable the Court  

trying the offence to rely on such core version.   

6. Mr.  Mehrotra  submitted that  PW-5 was not  such a  

‘sterling  witness’  and  her  version  that  the  appellant  

committed rape on her cannot be believed.  He submitted  

that PW-5 has falsely implicated the appellant in the offence  

of rape on account of enmity between the appellant and the  

husband of PW-5.  He contended that the Doctor (PW-9) in  

her  evidence  as  well  as  the  medical  examination  report  

(Ext.P-8) are clear that there were no external injuries on the  

person  of  PW-5.   He  submitted  that  PW-1,  the  seizure  

witness, has clearly proved the seizure of bangles, dhoti and  

5

Page 6

a blouse from the field of Tilak Singh where the occurrence  

was  alleged  to  have  been  taken  place  and  these  articles  

were seized in presence of PW-5 and yet PW-5 has omitted  

to mention about the seizure of these articles from the place  

of occurrence in her evidence.  He finally submitted that the  

FIR (Ext.P-9) was scribed by V.S. Rathod of the Police Chowki  

and not by PW-10, the Investigating Officer.  He argued that  

in fact PW-10 went on leave from 23.12.1987 and made a  

shoddy and defective investigation and hastily submitted a  

charge-sheet against the appellant.  He submitted that there  

was,  therefore,  reasonable  doubt  in  the  prosecution  case  

and the appellant was entitled to be acquitted because of  

such doubt.

7. Mr. Siddhartha Dave, learned counsel appearing for  

the State of Madhya Pradesh, submitted that the testimony  

of PW-5 that the appellant forcibly committed rape on her by  

felling  her  on  the  ground is  corroborated  by  PW-2 before  

whom she made a statement soon after the incident as well  

as by the FIR (Ext. P-9) lodged by her to PW-10 one day after  

the incident.  This is, therefore, not a case where the finding  

6

Page 7

of guilt against the appellant recorded by the High Court is  

on the sole testimony of PW-5 as argued by Mr. Mehrotra.  

He cited Karnel Singh v. State of M.P. [(1995) 5 SCC 518] for  

the proposition that the prosecutrix of a sex offence cannot  

be put on par with an accomplice whose evidence needs to  

be corroborated in material particulars.  He submitted that  

the nature  of  evidence of  the prosecutrix  is  such that  no  

corroboration  is  necessary  and  if  the  testimony  of  the  

prosecutrix is trustworthy and totality of the circumstances  

appearing  on  the  record  of  the  case  disclose  that  the  

prosecutrix  does  not  have  a  strong  motive  to  falsely  

implicate  the  person  charged,  the  Court  should  ordinarily  

have no hesitation in accepting her evidence.  He submitted  

that applying the aforesaid test to the evidence of PW-5 and  

considering all  other  circumstances  in  this  case,  the High  

Court  was  right  in  recording  the  conviction  against  the  

appellant.  

8. In reply to the submission of Mr. Mehrotra that the  

medical  evidence  of  PW-9  as  well  as  the  medical  

examination report (Ext.P-8) did not disclose any injuries on  

7

Page 8

the person of PW-5, Mr. Dave cited the decision of this Court  

in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]  

in  which  even  though  there  was  no  medical  evidence  to  

corroborate the testimony of the prosecutrix, this Court held  

that  such  corroboration  was  not  necessary  where  the  

evidence of the prosecutrix was otherwise  consistent and  

stood corroborated by other circumstances and the FIR.  In  

reply to the contention of Mr.  Mehrotra that the appellant  

has been falsely implicated on account of enmity between  

the husband of PW-5 and the appellant, he submitted that  

PW-2 has very fairly stated in her evidence that there was  

enmity  between  the  two  and  yet  has  stated  that  the  

complaint against the appellant has not been falsely made.  

He submitted that a very strong circumstance against the  

appellant  is  that  after  the  incident  on  21.12.1987  the  

appellant absconded and he was arrested by the police after  

ten days on 31.12.1987.  

9. Mr.  Dave  submitted  that  the  trial  court  has  not  

appreciated the meaning of the word ‘consent’ used in the  

8

Page 9

definition of ‘rape’ in Section 375, IPC.   He cited  State of  

Uttar  Pradesh  v.  Chhotey  Lal [(2011)  2  SCC 550]  for  the  

proposition that consent for the purpose of Section 375, IPC,  

requires voluntary participation not only after the exercise of  

intelligence based on the knowledge of the significance and  

moral  quality  of  the  act  as  also  after  full  exercise  of  the  

choice between resistance and assent.  He submitted that  

the evidence of PW-5 clearly establishes that there was no  

voluntary  participation  in  the  sexual  intercourse  by  PW-5,  

and on  the contrary,  PW-5 could  not  physically  resist  the  

sexual  intercourse  forced  on  her  by  the  appellant.   He  

submitted  that  the  High  Court  therefore  rightly  held  the  

appellant guilty of the offence of rape and the finding of guilt  

recorded by the High Court against the appellant should not  

be disturbed by this Court in this appeal.

Findings of the Court

10. Mr. Mehrotra is right in his submission that burden is on  

the prosecution to prove beyond reasonable doubt that the  

appellant is guilty of the offence under Section 376, IPC and  

this  burden  has  to  be  discharged  by  adducing  reliable  

9

Page 10

evidence in proof of the guilt of the appellant.  In the present  

case,  the  prosecution  seeks  to  establish  the  guilt  of  the  

appellant  through  the  evidence  of  PW-5,  the  prosecutrix.  

Law is well-settled that the prosecutrix is a victim of, and not  

an accomplice in, a sex offence and there is no provision in  

the Indian Evidence Act requiring corroboration in material  

particulars  of  the evidence of  the prosecutrix  as is  in  the  

case  of  evidence  of  accomplice.   He  submitted  that  the  

prosecutrix is thus a competent witness under Section 118 of  

the Indian Evidence Act and her evidence must receive the  

same weight as is attached to an injured witness in cases of  

physical  violence  [see  State  of  Maharashtra vs.  

Chandrapraksh Kewalchand Jain (1990) 1 SCC 550].  Keeping  

this principle in mind, when we look at the evidence of PW-5,  

we find that she has categorically stated that the appellant  

fell  her  down,  covered  her  mouth  with  one  hand  and  

restricted her hands with other hand and lifted her petticoat  

and committed rape on her.  It is true that on her medical  

examination the next day, PW-9 did not find any injury on  

the person of PW-5, but PW-5 has explained that she fell on  

10

Page 11

her back in the agricultural field which had a smooth surface  

and there were wheat and mustard crops in the field and this  

could be reason for her not suffering injury.   

11. According  to  Mr.  Mehrotra,  however,  PW-5  is  not  a  

reliable witness as she has made a significant omission in  

her evidence by not stating anything about the seizure of the  

blouse, dhoti and broken bangles which were made in her  

presence.  But we find that no question has been put to PW-

5 in cross-examination with regard to seizure of the blouse,  

dhoti and broken bangles in her presence.  If the appellant’s  

case was that PW-5 cannot be believed because she made  

this significant omission in her evidence, a question in this  

regard  should  have  been  put  to  her  during  her  cross-

examination.   To  quote  Lord  Herschell,  LC  in  Browne  vs.  

Dunn [(1894) 6 R 67]:

“……it  seems  to  me  to  be  absolutely  essential  to  the  proper  conduct  of  a  cause,  where it  is  intended to suggest  that a witness is not speaking the truth  on  a  particular  point,  to  direct  his  attention to the fact by some questions  put  in  cross  examination  showing that  the imputation is intended to be made,  

11

Page 12

and not to take his evidence and pass it  by as a matter altogether unchallenged,  and then, when it is impossible for him  to  explain,  as  perhaps  he  might  have  been able  to  do if  such questions  had  been  put  to  him,  the  circumstances  which it  is  suggested indicate that  the  story he tells ought not to be believed,  to argue that he is a witness unworthy  of credit.”  

Section 146 of the Indian Evidence Act also provides that  

when a  witness  is  cross-examined,  he may be asked any  

question which tend to test his veracity. Yet no question was  

put to PW-5 in cross-examination on the articles seized in  

her presence.  In the absence of any question with regard to  

the  seizure  of  the  blouse,  dhoti  and  broken  bangles  in  

presence of PW-5, omission of this fact from her evidence is  

no ground to doubt the veracity of her evidence.  

12. The evidence of PW-5, in this case, is also corroborated  

by other evidence.  Section 157 of the Indian Evidence Act  

provides  that  in  order  to  corroborate  the  testimony  of  a  

witness,  any  former  statement  made  by  such  witness  

relating to the same fact at or about the time when the fact  

took  place,  or  before  any  authority  legally  competent  to  

12

Page 13

investigate the fact may be proved. The evidence of PW-5 is  

corroborated by the evidence of  her  mother-in-law (PW-2)  

before whom she stated about the commission of the rape  

by  the  appellant  soon  after  the  incident  the  very  same  

evening.  The evidence of PW-5 is also corroborated by the  

FIR  (Ex.9)  before  the  Investigating  Officer,  PW-10,  before  

whom she lodged the complaint one day after the incident.  

13. Further, though the medical evidence of PW-9 and the  

medical examination report Ex. P-8 do not give any definite  

opinion  on  whether  or  not  PW-5  suffered  any  sexual  

intercourse,  soon  after  the  medical  examination  on  

22.12.1987,  the petticoat  and vaginal  smear slides (which  

were prepared and sealed) were sent for further examination  

and the report of State Forensic Science Laboratory (Ex. P-

15)  confirms  spots  of  semen  and  spermatozoa.   This  

evidence confirms that PW-5 had been subjected to sexual  

intercourse some time before she lodged the complaint in  

the  police  station  on  22.12.1987.   Hence,  the  forensic  

evidence is not entirely in conflict with the evidence of PW-5  

so as to belie her story that she was raped by the appellant.  

13

Page 14

14. We  further  find  that  the  appellant  has  not  taken  a  

defence in his statement under Section 313 of the Criminal  

Procedure  Code  that  the  sexual  intercourse  was  with  the  

consent of PW-5.   Instead,  he has denied having had any  

sexual intercourse with PW-5 and has taken a stand that he  

has been falsely implicated on account of a quarrel between  

him and the husband of PW-5.  Yet, the trial court held that  

there was proof of sexual intercourse between the appellant  

and PW-5, but the sexual intercourse was with the consent of  

PW-5.   We  are  of  the  considered  opinion  that  as  the  

appellant had not taken any defence of consent of PW-5, the  

trial court was not correct in recording the finding that there  

was consent of PW-5 to the sexual intercourse committed by  

the  appellant  and  should  have  instead  considered  the  

defence of the appellant that he had been falsely implicated  

because of a quarrel between him and the husband of PW-5.  

We have, however, considered this defence of the appellant  

but  find  that  except  making  a  suggestion  to  PW-2,  the  

appellant has not produced any evidence in support of this  

defence.   As  PW-2 has denied the  suggestion,  we cannot  

14

Page 15

accept  the  defence  of  the  appellant  that  he  was  falsely  

implicated on account  of  a  quarrel  between the appellant  

and the husband of PW-5.   

15. We  are  also  unable  to  accept  the  submission  of  Mr.  

Mehrotra that the investigation by the police is shoddy and  

hasty  and  there  are  defects  in  the  investigation  and  

therefore benefit of doubt should be given to the appellant  

and  he  should  be  acquitted  of  the  charge  of  rape.   The  

settled position of law is that the prosecution is required to  

establish the guilt of the accused beyond reasonable doubt  

by adducing evidence.  Hence, if the prosecution in a given  

case adduces evidence to establish the guilt of the accused  

beyond  reasonable  doubt,  the  court  cannot  acquit  the  

accused on the ground that there are some defects in the  

investigation, but if the defects in the investigation are such  

as to cast a reasonable doubt in the prosecution case, then  

of course the accused is entitled to acquittal because of such  

doubt.  In the present case, as we have seen, the evidence  

of PW-5 as corroborated by the evidence of PW-2 and the FIR  

establish  beyond reasonable doubt  that  the appellant  has  

15

Page 16

committed  rape  on  PW-5  and  thus  the  appellant  is  not  

entitled to acquittal.  

16. In the result, we are not inclined to interfere with the  

finding of the guilt recorded by the High Court against the  

appellant  as  well  as  the  minimum  sentence  of  7  years  

imprisonment for the offence under Section 376 IPC imposed  

by the High Court.  The appeal is accordingly dismissed.  

.……………………….J.                                                                (A. K. Patnaik)

………………………..J.                                                                (Gyan Sudha Misra) New Delhi, July 04, 2013.    

16