NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELATE JURISDICTION

CRIMINAL     APPEAL     No.     133     of     2007   

O.M. Baby (Dead)  by Lrs. … Appellant (s)

Versus

State of Kerala … Respondent

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J   

The appellant O.M. Baby (since deceased), had been convicted by  

the learned Sessions Judge, Wayanad, Kalpetta, Kerala under Sections  

376, 506 (ii) and 342 IPC.  He was sentenced to undergo rigorous  

imprisonment for seven years for the offence under Section 376 IPC; two  

years for the offence under Section 506 (ii) IPC and for a period of one  

year for the offence under Section 342 IPC.  Additionally, for the offence  

under Section 376 IPC, a fine of Rs.50,000/-,  in default,  further

imprisonment for two years was imposed on the appellant.  The fine  

amount was directed to be paid to the prosecutrix (PW 2).  The learned trial  

court had also directed that the sentences are to run consecutively.   

2. Aggrieved, the deceased-appellant filed appeal before the High  

Court of Kerala.  By the judgment and order dated 13.01.2005, the appeal  

was dismissed by the High Court.  However, the sentence imposed under  

Section 376 IPC was reduced to three years.  The sentences imposed  

under Sections 506 (ii) and 342 IPC were maintained but were directed to  

run  concurrently.  Aggrieved by the aforesaid, this appeal has been filed.

3. During the pendency of the appeal, the appellant, O.M. Baby, died  

on 07.10.2008.  On an application filed, the wife of the deceased was  

allowed to be pursue  the appeal.

4. At the outset, the case of the prosecution, in brief, may be noticed.  

According to the prosecution, the family of the victim (PW 2) was  

maintaining an account with the appellant, who was running a provision  

shop in the locality.  Different articles were purchased from the shop of the  

accused on credit which were adjusted from time to time by payments  

made as well as by the amount due to the family of the victim who used to  

supply milk to the accused.  The prosecution has alleged that on  

25.12.1993 at about 8 AM, PW 2 who, was then aged about 12 years, went  

to the shop of the accused with milk and also to make a few purchases.  As  

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25.12.1993 happened to be Christmas day, the shop was closed from the  

front.  After PW 2 handed over milk to the accused she wanted some  

articles from the shop on credit.  The accused, according to the  

prosecution, asked PW 2  to go inside the shop.  Thereafter, the accused  

supplied the articles as demanded by PW 2; however, soon thereafter, the  

accused came from behind, put a cloth on the face of PW 2, took her to  

adjacent room and closed the same.  He then  committed rape on her after  

putting her into fear of death.  Consequently, according to the prosecution,  

PW 2 did not offer any resistance and also did not raise any alarm.

5. The further case of the prosecution is that after PW 2 reached her  

house, she told her mother about the incident.  As the father of the victim  

was away, her mother (PW 4) informed her own brother (PW 3) and after  

his arrival, they took the victim to the Taluka Headquarter hospital.  

However, as there was no Gynaecologist in the hospital they took the  

victim to the District hospital where PW 1 examined her at about midnight  

of 25.12.1993.  According to the prosecution, PW 1 issued the report of the  

medical examination (Ext. P 1) and also informed the Gynaecologist (PW  

18) who came to the hospital and took the vaginal swab and smear of the  

victim which was sent for chemical analysis.  Thereafter, according to the  

prosecution, report of the analysis dated 13.07.1994 (Ext. 2) was  

submitted.  

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6. The prosecution had further alleged that as PW 4 (the mother of the  

victim) suspected that the doctors of the District hospital where the victim  

was taken on 25.12.1993 may not be fair, she had filed a petition in the  

Court of the Judicial Magistrate First Class, Sulthan Bathery and on the  

basis thereof, the Investigating Officer of the case (PW 13) got the victim  

examined by another Gynaecologist (PW 8) in the Medical College  

Hospital at Calicut.  PW 8 took the vaginal swab and smear of the victim  

and sent the same for chemical analysis.  The report of the medical  

examination of the victim by PW 8 (Ext. P-8) as well as the chemical  

analysis report dated 13.07.1994 (Ext. P-9), according to the prosecution,  

were received in due course.  It may be noticed, at this stage, that while in  

the first report of  chemical analysis i.e. Ext. P-2 it is recorded that the  

sample did not show the presence of spermatozoa, the second report of  

analysis (Ext. P-9) was to the  contrary.

7. On these facts, the FIR (P-10) was registered and the Investigation  

was conducted by PW 13, the Circle Inspector of Police Station, Sulthan  

Bathery.  The accused was arrested in the course of investigation and he  

was also medically examined by PW 7 who submitted the Potency  

Certificate of the accused (Ext. P-7).  On completion of the investigation,  

charge sheet was filed and the case was committed for trial to the Court of  

Learned Sessions Judge, Sulthan Bathery who framed charges against the  

accused.  The accused having denied the charges was put on trial in the  

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course of which the prosecution examined as many as 14 witnesses and  

also Exhibited 15 documents.  No evidence was adduced on behalf of the  

accused who, however, had proved certain contradictions in the First  

Information Report and the evidence of PW 2.  The same were marked as  

Ext. D-1 and D-2.  The accused was also examined under Section 313 Cr.  

P.C. wherein he denied the allegations levelled against him.  Thereafter, at  

the conclusion of the trial, the accused-appellant was convicted and  

sentenced as already noted above.

8. Learned counsel for the appellant has submitted that in view of the  

two contradictory reports of chemical analysis of the sample of vaginal  

swab and smear (Ext. P-2 and P-9), the benefit of the first report (Ext. P-2)  

which did not indicate presence of spermatozoa should go in favour of the  

accused.  In this regard, it has been submitted that the sample in respect of  

which Ext. P-2 report was submitted was taken on the day of the incident  

itself, i.e. 25.12.1993 whereas the  sample, which is the subject matter of  

the second report (Ext. P-9) was taken ten days later, i.e. on 06.01.1994.  

Learned counsel for the appellant has submitted that there is no material  

on record to show any lacuna in taking of the first sample and that the  

prosecution has failed to satisfactorily explain the two contradictory reports.  

Learned counsel has further argued that the evidence on record discloses  

that there were no external injuries on any part of the body of the alleged  

victim which can corroborate the evidence of the prosecutrix tendered in  

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court.  Pointing out the evidence of PW 2, learned counsel has urged that  

there are several inconsistencies in the evidence of the prosecutrix which  

would make it unsafe for the court to act on the uncorroborated testimony  

of the said witness.

9. Learned counsel, while pointing out the relevant part of the evidence,  

has also urged  that the uncle of the alleged victim, a Police Constable,  

was a tenant in the house of the accused and the said person bore a  

grudge against the accused for being evicted from the tenanted premises.  

Above all, according to the learned counsel, the family of the victim owed a  

sum of about Rs.18,000/- to the accused on account of purchase of  

different articles.  On account of the said facts, a false and concocted case  

has been brought against the accused with the help and connivance of the  

Police Constable.  Learned counsel, therefore, has contended that the  

order of conviction should be set aside so that the stigma attached to the  

family of the deceased accused is removed.

10. Controverting the submissions advanced on behalf of the appellant,  

the learned State Counsel has submitted that from the evidence of PW 4,  

i.e. the mother of the victim, it is clear and  evident that she had some  

doubts with regard to the fairness of the doctors in the District hospital and  

therefore, PW 4 had filed an application dated 04.01.1994 (Ext P-14)  

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before the concerned court for a second medical examination of the victim.  

Accordingly, the second medical examination of the victim was conducted  

on 06.01.1994 by P.W.8.  The sample of vaginal swab and smear was  

again taken on 06.01.1994 and the report submitted on 13.07.1994 (Ext. P-

9) had confirmed the presence of spermatozoa.  Learned State Counsel  

has submitted that the above circumstances show that there is nothing  

unusual or any suspicious circumstance surrounding Ext. P-9 to throw any  

doubt, particularly, when the second medical examination and the taking of  

second set of samples was performed by the doctors of the medical  

college hospital to whose no motive or interest can be attributed. Insofar as  

absence of injuries on the victim is concerned the learned State Counsel  

has submitted that even in Ext. P-1 (Report of the first medical examination  

held on the day of occurrence) it is recorded that the victim was in pain.  It  

is further argued that the alleged discrepancy in the report of the medical  

examination conducted by PW 11 to determine the age of the victim (Ext. P  

12) and the evidence of PW 2 with regard to bite marks on the breast; and  

the further statement of PW 2 in court that she fell unconscious and her  

failure to make such statement before the police as pointed out on behalf of  

the appellant are minor discrepancies which do not affect the core of the  

prosecution case.  According to the learned State counsel, the victim (PW  

2) has given a vivid account of the incident and there is no reason why the  

same should be disbelieved.  So far as role of the Police Constable (I.O.),  

uncle of the victim in instituting a false and concocted case on account of  

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the reasons noticed is concerned, learned State counsel has pointed that  

the said facts are not substantiated by the evidence on records.

11. While it is correct  that the two reports of the analysis of vaginal  

swab and smear are contradictory,  we are of the view that in the present  

case the prosecution has clearly proved and established the circumstances  

which necessitated the second medical examination of the victim and a  

second set of sample of vaginal swab and smear to be taken and sent for  

chemical analysis.  The aforesaid exercise was carried out on the basis of  

the application filed by the mother of the victim (PW 4) before the court of  

learned Judicial Magistrate as she had serious doubts with regard to the  

fairness of the doctors in the District hospital who had carried out the first  

medical examination and had taken the samples of vaginal swab and  

smear on the date of the occurrence.  The application by PW 4 before the  

learned Court was filed without delay, i.e. on 04.01.1994 and the second  

round of medical examination and taking of samples was completed on  

06.01.1994.  No motive and interest can be attributed to PW 8  who had  

conducted the second round of medical examination and had taken the  

second set of sample of vaginal swab and smear for chemical analysis.  

That apart, it is clear from the evidence of PW 8 that after sexual  

intercourse, though active spermatozoa would be present for 36 hours, the  

same would remain in the vaginal canal for as long as 17 days.  There is  

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no evidence to the contrary. In the aforesaid circumstances we do not see  

how the second report of the analysis (Ext. P-9) can be ignored by us.

12. Insofar as absence of injuries on the body of the victim is concerned,  

the evidence on record discloses that in the first medical examination itself,  

i.e. Ext. P-1 it is recorded that the victim was walking in pain. The evidence  

of PW 11, Dr. Shirley Vasu, Assistant Professor of Forensic Medicine, who  

had examined the victim for determination of her age, clearly shows that  

circum areolar bite mark contusion of both breast was noted along with  

laceration of lower lip.  In these circumstances, it cannot be said that in the  

present case, the prosecution has not succeeded in showing that the victim  

had not suffered any external injuries whatsoever.  In any event, absence  

of injuries or mark of violence on the person of the prosecutrix may   not  be  

decisive, particularly, in a situation where the   victim   did not  

offer any resistance on account of threat or fear meted out to her as in the  

present case. Such a view has already been expressed by this Court in  

Gurcharan     Singh   V. State     of     Haryana   1  and Devinder     Singh     V. State     of    

H.P 2.

13. An argument has been made by the learned counsel for the appellant  

that in view of certain inconsistencies in the evidence of the prosecutrix  her  

testimony  should not be accepted without any corroboration. As already  

1      (1972)    2       SCC        749 2        (2003) 11      SCC     488

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noted, not only corroboration in the form of external injuries is available in  

the present case, even otherwise i.e. in the absence of corroboration  the  

testimony of the victim cannot be ignored, unless the inconsistencies or  

contradictions are sufficiently serious to warrant such a course of action.  

We have already observed that the inconsistencies in the statement of PW  

2 are on minor aspects which do not affect the core of the case.  The  

golden rule of appreciation of the testimony of a prosecutrix laid down in  

Rameswar     Vs. State     of     Rajasthan  3  and amplified in State     of    

Maharashtra Vs. Chandraprakash     Kewalchand     Jain  4 has been  

consistently followed till date.  It will, therefore, be useful to reproduce  

herein para 16 of the judgment of this Court in the above case of State of  

Maharashtra V Chandraprakash     Kewalchand     Jain   (supra):

“16. A prosecutrix of a sex offence cannot be put on a  par with an accomplice.  She is in fact a victim of the crime.  The Evidence Act nowhere says that her evidence cannot  be accepted unless it is corroborated in material  particulars.  She is undoubtedly a competent witness under  Section 118 and her evidence 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.  What is  necessary is that the court must be alive to and conscious  of the fact that it is dealing with the evidence of a person  who is interested in the outcome of the charge levelled by  her.  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  

3         AIR  (1952)   SC        54 4        (1990)   1      SCC    550

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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.  The nature of evidence required to lend  assurance to the testimony of the prosecutrix must  necessarily depend on the facts and circumstances of each  case.  But if a prosecutrix is an adult and of full  understanding the court is entitled to base a conviction on  her evidence unless the same is shown to be infirm and not  trustworthy.  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.”

14. We would further like to observe that while appreciating the evidence  

of the prosecutrix, the court must keep in mind that in the context of the  

values prevailing in the country, particularly in rural India, it would be  

unusual for a woman to come up with a false story of being a victim of  

sexual assault so as to implicate an innocent person.  Such a view has  

been expressed by the judgment of this Court in the case of State     of    

Punjab vesus Gurmit     Singh  5    and  has found reiteration in a recent  

judgment  in Rajinder     @     Raju   versus State     of     H.P  6, para 19 whereof may  

be usefully extracted :

“19. In the context of Indian culture, a woman – victim of  sexual aggression –  would rather suffer silently than to  falsely implicate somebody.  Any statement of rape is an  extremely humiliating experience for a woman and until she  is a victim of sex crime, she would not blame anyone but  the real culprit.  While appreciating the evidence of the  

5 (1996)  2   SCC  384 6 (2009)  16  SCC 69

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prosecutrix, the courts must always keep in mind that no  self-respecting woman would put her honour at stake by  falsely alleging commission of rape on her and therefore,  ordinarily a look for corroboration of her testimony is  unnecessary and uncalled for.  But for high improbability in  the prosecution case, the conviction in the case of sex  crime may be based on the sole testimony of the  prosecutrix.  It has been rightly said that corroborative  evidence is not an imperative component of judicial  credence in every case of rape nor the absence of injuries  on the private parts of the victim can be construed as  evidence of consent.”

15. Insofar as the involvement of the uncle of the victim, the Police  

Constable, in setting up a concocted case against the accused is  

concerned, we do not find any evidence whatsoever in support of the  

contentions advanced.  There is no material on record to show that any rent  

was due to the accused by the aforesaid person or that a sum of  

Rs.18,000/- was due to the accused from the family of the deceased.

16. For the aforesaid reasons, we do not find any merit in this appeal.  It  

is accordingly dismissed and the judgment and order of the High Court of  

is affirmed.

…………………………………J.

[SWATANTER KUMAR]

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………………………………..J.

[RANJAN GOGOI]

New Delhi,

July 3 , 2012

sks

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