DASTAGIR SAB AND ANR. v. STATE OF KARNATAKA

Citation: [2004] 1 S.C.R. 952

Court: Supreme Court of India

Bench: DORAISWAMY RAJU, S.B. SINHA

Case summary

DASTAGIR SAB AND ANR. v. STATE OF KARNATAKA.pdf

Judgment text

f DASTAGIR SAB AND ANR. V. 1. • STATE OF KARNATAKA JANUARY 22, 2004 [DORAISWAMY RAJU AND S. B. SINHA, JJ. ] Evidence Act, 1872: Section 9.

Test Identification Parade-Non-holding of-Whetherfatal to prosecution case-Victim saw accused persons on three occasions almost immediately prior to commission of offence and also when she was sexually assaulted by them-Father and brother ofthe victim came to the scene ofcrime and saw accused running away-Brother identified them by their description-Accused confessed their guilt when caught by father but refused to come with him-IO -= showed accused to victim before their arrest in order to ensure that the right persons were arrested-Accused also named in the FIR-Held: Under such circumstances, Tl parade not necessary-Hence, non-holding of Tl parade did not-vitiate trial F Criminal Trial: Rape--lnjlllJ' on the body of victim-Absence of-Effect-Rape victim made to lie on dried-up cotton plants-Victim medically examined after 6 days of the incident-Medical Officer opined that any abrasion or marks of violence would be visible for 24 hours and thereafter would disappear- Rupture of hymen of victim took place about one year prior to incident- Seminal stains were present on the cloth of the victim-Held: Injury on the -'.

, body ofvictim not a sine qua non to prove a charge ofrape--Rupture ofthe hymen explained as to why no visible injury was found on the private part of the victim-As the victim lay on the dried-up cotton plants, there was no injwy on her back-Moreover, presence ofsemen on the cloth of the victim corroborated victim's case-Under these circumstances prosecution case fully established-Hence, conviction upheld-Penal Code, 1860-S. 376(2)(g). According to the prosecution, PW-I saw. the appellants-accused on three occasions almost immediately prior to the commission of the offence and also when they forcibly committed sexual assault on her. On hearing DASTAG! R SAB v. STATE OF KARNATAKA 953 ~ )_ the cries of PW-I, her father and brother came to the spot and saw the appellants running away from the spot. The appellants were identified by ·the brother of PW-I by their description.

The appellants were chased and caught by tlfo father of PW-I and the appellants confessed their guilt but they refused to come with him. Subsequently, the appellants were arrested by the Investigating Officer and were shown to PW-1 in order to ensure that the right persons were arrested. The appellants were also named in the FIR but no Test Identification Parade was held. It was the further case of the prosecution that PW-1 was made to lie on dried-up cotton plants at the spot where the incident took place. The Medical Officer categorically stated that any abrasion or marks of •· violence would be visible for 24 hours and thereafter the same would disappear. Rupture of the hymen of PW-1 took place about one year prior to the incident. There were seminal stains also on the cloth of the victim. The appellants-accused were convicted by the trial court for an , offence under Section 376(2)(g) of the Penal code, 1860. The High Court affirmed the conviction. Hence the appeal.

On behalf of the appellants, it was contended that non-holding of the Tl parade and absence of injury on PW-1 were fatal to the prosecution's case. (957-E) "'" Dismissing the appeal, the Court HELD: t. l. Non-holding of Test Identification Parade would not by >- ~ itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of formula for universal and ready application in all cases... " In the instant case, as noticed hereinbefore, PW I gave sufficient particulars of the persons committing the offence of criminal assault on her. They had been identified by their description by her brother. The appellants were chased and they were caught and allegedly they had made a confession of their guilt. The relatives of the prosecutrix and other persons had also approached Mahantesh Patil, PW 19 to see that the culprits are brought to book and assurance in that behalf had been given.

It was only when despite repeated attempts their grievances were not met, the First Information Report was lodged. Furthermore, in this case the names of the appellants have been mentioned in the First Information Report. ( It nas been brought on record that immediately after the incident the father of the prosecutrix went in search of the accused where he also met PW 19 Mahantesh Patil who had promised that he would send for the accused and see that justice is done but since he was not available subsequently for 2-3 days, the complaint· was filed. Fui1her, it is well settled that absence of injuries on the person of the prosecutrix would not by itself be sufficient to discard the prosecution case. The incident took place on 31. 10. 1993. PW I was examined by the Medical Officer at 4. 15 p. m. on 5. 11. 1993. Dr. H. Vadiraj PW25 categorically stated that any abrasion or marks of violence would be visible for 24 hours and thereafter the same may disappear. Admittedly.

according to the doctor, rupture of hymen of PW1 took place about one year prior to the occurrence and that may lead to the possible explanation as to why no visible injury was found on her private part. In the cross-examination, it is elicited from this witness that while taking brief history of the incident from the victim, she clearly stated that she .... had been raped by Dastagir Sab, aged about 28 years and Rajasab, aged 2. S . ' years of Athnoor village on 31. I0. 1993 at 12 noon. Furthermore, the witness failed to state as to whether physical exercise also can lead to rupture of hymen. The learned Session Judge having regard to the materials on record observed: "She was wearing at the relevant point of time, one Lahanga, one Davani and a blouse. The two hooks on the top have been torn and the clothes which P. W. I was wearing at the relevant point of time were seized by the Investigating Officer subsequent to the complaint filed by P. W.

I and they were subjected to the chemical analysis by the Investigating Officer. The chemical analysis report is available alt Ex. P. 29, item No. I is a sealed cloth packed said to contain om: Lahanga. The result of the analysis disclosed that the presumptive: chemical tests for the presence of seminal stains was found positive for item No. 1 and 5(1). Item No. 5(1) refers to dhoti which was subsequently seized from the possession of A-1. Therefore, the chemical analysis test positively proves that there was seminal stain both on Lahanga of the victim and the dhoti of A-l. " DASTAGIR SAB v. STATE OF KARNATAKA [SINHA, J. ] 961 We may notice that the appellant No. I was examined by Dr. r . 1 Chikkareddy PW 20 on 6. 11. 1993 whereupon the following injuries were found: "!. Abrasion on the right side of the n~ck II,'' x Yi" with crest formation. 2. Abrasion on the It. Side of cheek 3/4" x 3/4" crest formation.

" Those injuries, according to the opinion of the doctor could be caused by scratching with nails. So far as the alleged absence of injury on her body having regard to place of occurrence, as urged by the learned counsel for the appellant, is concerned, suffice it to point out that the learned Session Judge noticed that 'there were dried up cotton plants at the spot where the incident took place'. It was further noticed that when the accused made her lay on a land where there were cotton plants, it is natural that she would not sustain any visible injury. The spot mahazar MO- I showed that at the place of occurrence there were dried up cotton plants. Having regard to the aforementioned materials, -t" ) . both the learned Session Judge as also the High Court negatived the submission of the appellant to the effect that absence of injury on the back of the prosecutrix would lead to the conclusion that prosecution case should not be relied upon. In Narayanamma (Kum) etc. v.

State ofKarnataka and Ors etc. , [1994] 5 SCC 728, this Court inter alia observed: "4(i) According to the prosecutrix, she had been bodily lifted by Muniyappa and Venkataswamy, respondents, taken to the field of Gopalappa where Somanna already present in waiting raped her while she was forcibly laid on the matted jowar crop. Since there were no marks of injury on the back of the prosecutrix and the field was reported to be having stones on the surface, the word ofthe prosecutrix was doubted by the High Court about the manner in which the crime was committed. The High Court unfortunately did not appreciate the importance of the use ofjowar stalks, which in the month of October, when the occurrence took place, would have been more than a man's height and when trampled upon and matted would provide sufficiently a cushion for the crime being committed without the prosecutrix receiving any injury on her back.

The surrounding crop would also provide a cover obstructing visibility to a casual passer-by. Thus we view that the absence of injuries on the back of the prosecutrix can be of no consequence in the circumstances. " The presence of semen on the cloth of the victim also corroborates the evidence of the prosecutrix. Injury on the body of the person of the victim is not a sine qua non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot, thus, be the sole criteria for coming to a conclusion that no such offence had taken place. This Court in Rafiq v. State of Uttar Pradesh, AIR (1981) SC 559: I [1980) 4 sec 262 observed: "5... The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life-styles may fluctuate, and so, rules of prudence relevant in one fact-situation may be inept in another.

We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed ' . to a Bench in one reported decision must mechanically be extend1:d to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstance. Indeed, from place to place, from age to age, from varying life-styles and behavioural complex1:s, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity kst rigidity in the shape of rule of law in this area be introduced through a new type of presidential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed. " In Sheikh Zakir v. State of Bihar, AIR (1983) SC 911: [1983) 4 SCC I0, this Court observed: "8...

lnsofar as non-production of a medical examination report and the clothes which contained semen, the trial cou11 has observed that the complainant being a woman who had given birth to four children it was likely that there would not have been any injuries on her DASTAGIR SAl3 v. STATE OF KARNATAKA \SINHA. . I. ] 963 private parts. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could 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 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... " Aquestion furthennore would arise as to why she would falsely implicate the appellants. Both the Session Judge as also the High Court had rejected the defence plea raised in this behalf by the appellants. The learned Session Judge found: "The PW I has withstood the test of cross-examination and consequently her evidence need not be corroborated by any other eye witnesses or any other witnesses. There is no reason to doubt the --. + evidence of PW I in any manner. The only motive suggested is that ) ' since Veerbhadra wanted to drive away Mohammed who was cultivating the property, a false complaint was filed against the accused persons. At any stretch of imagination, this motive suggested on the part of accused persons against the evidence of PW I cannot be accepted. This Mohammed in no way connected to accused persons.

He is not the father of A-1 and A-2; he is not the brother of A-1 and A-2 and the accused persons are not residing in the house of said Mohammed. At any point of time, prior to the incident, Mohammed and the accused persons were not found together in any place. They have no common interest. Consequently, it is not possible to believe that by filing false case against accused persons, CW2 Veerbhadra can evict the Mohammed from the land. Therefore, such a motive is there is one's imaginatioff and consequently, such evidence cannot be accepted. " We agree with the said findings recorded by the learned Session Judge. In Pramod Mahto and Ors v. The State ofBihar, AIR (I 989) SC I475, this Court observed: "9...

We found no merit in those contentions because even if communal feelings had run high, it is inconceivable that an unmarried girl and two married women would go to the extent of staking their reputation and future in order to falsely set up a case of rape on them for the sake of communal interest... " In State o/Rajaslhan v. Shri Narayan. AIR (1992) SC 2004, this Court held: "5. The accused was a distant relative whom the prosecutrix had met for the first time about 5 or 6 years before at the wedding of her sister-in-law. Thereafter she had not many occasions to meet him. Her relations with the accused were not strained. The relations of her husband with the accused were also not strained. In the circumstances there was no motive or reason for the prosecutrix or her husband to falsely involve the accused in the commission of a crime which would not put her chastity at stake.

Her husband had come to celebrate Diwali with his wife and family members and quarrel with anyone, more so a relative, would be farthest from his thought. Even the: complaint filed by the accused on the 23rd was a fall out of the: incident at which he was beaten. Unless the evidence discloses that she and her husband had strong reasons to falsely implicate th<: accused, ordinarily the court should have no hesitation in accepting her version regarding the incident... " For the reasons aforementioned, we do not find any merit in this appeal. , which is dismissed accordingly. v. s. s. Appeal dismissed. """'··