V.D. Gyani, J.
1. The appellant has been convicted under Section 376, IPC and sentenced to undergo R.I. for seven years with a fine of Rs. 500/- or in default, to suffer four months R.I., by the Third Additional Sessions Judge, Alirajpur, Dist. Jhabua, in Sessions Trial No. 12 of 1985, vide his judgment dated 23rd April, 1985.
2. Prosecution case was that on 13-9-1984, the prosecutrix Surli -- P. W. 1 with her 'Derani' Anbai -- P. W. 5 and Devar (brother-in-law) Surla had been to the jungle of Alibayada for collecting fire-wood. Around 3 p.m., she called Anbai and Surla, but as none responded, she proceeded home with a 'Moli' -- a bundle of fire-wood. While she was passing through 'Khodari', it is said that, the accused along with Dungariya, Idla and one young boy, followed her. She was asked to stop. The prosecutrix parried as to why she should stop? It is said that, the accused exoressed his desire to have intercourse with her She was caught by the accused, Shanka-riya while Dungaria and Idla persuaded him to leave the prosecutrix, but he did not yield to their persuasions. Returning home, she reported to her husband and father-in-law and mother-in-law. It is said that the hour being late, the report Ex. P. 1 was lodged by her next day morning at 9 a.m. She was sent for medical examination. Ex. P. 3 is the report given by lady Dr. Gavali -- P. W. 6. The radiologist, to whom she was referred, found her about 18 years of age and the trial Court has also recorded her apparent age as 22 years. There is no dispute about age in this case.
3. On completion of investigation, the accused was tried for the above offence and sentenced, as stated above, hence this appeal.
4. Shri Pradhan, learned counsel appearing for the appellant urged that considering the medical report and the testimony of other witnesses, it cannot be said that the prosecution has proved the charge against the accused. The evidence is weak and inconsistent. Shri Desai, learned panel lawyer, appering for the respodnent-State submitted that the conviction, as recorded by the trial Court, is well supported by evidence on record, does not call for any interference.
5. Apart from Surli P.W. 1, prosecution has examined her mother-in-law Banibai P.W. 2, father-in-law Kansingh P.W. 3, her husband Ganpat P.W. 4 and Anbai P.W. 5. Anbai's husband Surla who had also gone to jungle, has not been examined by the prosecution. None amongst those, who according to the FIR Ex. P. 1, had intervened and persuaded to accused not to catch hold of the prosecutrix has been examined.
6. Lady Dr.Gavali P.W. 6 has categorically stated that seeing the chemical examiner's report Ex. P. 8, she could say that no intercourse had taken place with the prosecutrix. She is very clear and emphatic in her statement. The findings recorded by her in her report Ex. P. 3 do not support the prosecution. Similarly the Chemical Examiner's report Ex. P. 8 which is also negative so far as seminal stains and presence of spermatozo are concerned, nothing of the sort, was detected on chemical examination.
7. Thus the case hinges on the sole testimony of the prosecutrix Surli P.W. 1 and the evidence of her relations to whom she is said to have narrated the incident on reaching home.
8. It is the case of the prosecutrix that she was dragged towards the 'Khodari' and her whole body was scratched, but surprisingly enough not even a scratch was found on her body. The trial Court has very conveniently overlooked these infirmities in the prosecution. The Chemical Examiner's report could have afforded valuable corroboration so also the medical examination but on both these scores the prosecution draws a blank. As rightly urged by the learned counsel for the appellant the trial Court has failed to consider the partisan nature of investigation, Idla, Dungariya and a young boy have been referred to the FIR Ex. P. 1 as the persons who were very much present on the spot in fact they had tried to persuade the accused not to indulge in the nefarious act that he was out to. but these persons have not even been examined as witnesses. They were the persons who had actually intervened, as per FIR Ex. P. 1. The trial Court has also accepted their presence on the spot, but failed in not considering the effect of their non-examination. The trial Court rests content with the fact that their names are included in the list of witnesses. What is important is their examination before the Court. If Banibai, Ganpat and Kansingh all on the same point, the narration given by Surli on reaching home could be examined learned Judge should have thought as to what prevented the prosecution from not examining at least one of these witnesses who were admittedly present on the spot, more so, when even Surla who is said to have gone to jungle along with the prosecutrix has also not been examined. It is not a question of duplication of evidence as urged by the learned Panel Lawyer. What is essentially important is the unfolding of prosecution story and apart from the prosecutrix, if there was any one else who could have unfolded the prosecution case at its earliest stage, it was either Idla or Dungariya.
8A. Shri Pradhan argued that the FIR, Ex. P. 1, is not the first information report. The prosecution has not come with clean hands, in this behalf. The trial Court has heavily barked upon this report, Ex. P. 1, for corroboration of prosecutrix' testimony, which even the trial Court has felt necessary. It may be noted here itself that corroboration in such cases is no longer necessary either as rule of prudence or as a requirement of law but the fact as it stands is that the trial Court has looked for corroboration. Referring to Ex. P. 1, the learned Judge has concluded that the FIR, Ex. P. 1, affords ample corroboration to the testimony of Surli (P.W. 1). (See para 14 of the impugned judgment).
3 9. Coming to the question whether Ex. P. 1 is in reality the FIR. Banibai Surli's mother-in-law has admitted in her evidence that they had gone to A lirajpur that night on the date of incident itself, and a report was lodged. On lodging the report, the Police-wallas said that they would find out the 'Badmash'. Now this report is not produced by the prosecution. It is not Banibai alone who had stated so. Her father-in-law Kansingh has also stated on oath that they all had gone to Alirajpur Police Station that very night where Ganpat lodged a report. What happened to this report, and what was the report, are questions which remain unanswered. The prosecution has not chosen to offer any explanation either through elucidation from these witnesses or the Investigating Officer. Even Anbai has also deposed about having gone to 'Bhorkuwa' police chowki for lodging a report, but were advised to lodge at Alirajpur. The learned Judge while placing intrinic reliance on Ex. P. 1, does not think of looking into these infirmities which definitely affect not only the evidentiary value of document marked Ex.P. 1, as an FIR, but also its veracity. The learned Judge of the trial Court it appears has found a way out to plug these infirmities and loop holes by conveniently omitting to consider them.
10. It was urged by Shri Pradhan, that the trial Court has devolked more of its reasoning and discussion to some of the suggestions made to the prosecution witnesses in their cross-examination rather than what has in fact been proved by the prosecution within the meaning of Section 3 of the Evidence Act. The conviction, it was submitted, is based on rejection of defence case, rather than proof of the prosecution case. This approach on the part of the learned Judge was severely criticised by appellant's counsel, who contended that an accused is not bound by such questions or suggestions being put to any witness by his counsel in cross-examination of witnesses. And lastly it was submitted that in all fairness, it was expected of the trial Court, while confirming its consideration to such suggestion, with a view to understand the defence stand to have at least glanced at the accused-statement recorded under Section 313, Cr.P.C., which stands on a better legal footing than the suggestions thrown to witnesses in cross-examination.
11. The submission made by the learned counsel deserves consideration. The learned counsel is right when he says that major position (portion) of trial Court's discussion is devoted to the suggestions made by the defence counsel in cross-examination. But before considering the defence-stand and the evidence in support thereof, it is essential for the court to reach a conclusion and record a positive finding about the proof of the prosecution case. The falsity of a suggestion, as in the instant case-consent thrown to a witness would not by itself prove the prosecution case and the guilt of the accused, though in a given case, depending on circumstances, it may be an additional circumstances along with other duly established and proved circumstances against the accused. Since it was suggested to the prosecutrix Surli in her cross-examination that the act was committed with her consent, what the trial Court appears to have done is sharing with assumption of proof of rape and negativing consent convicted the appellant. This aproach, considering the defence plea first, before dealing with the prosecution evidence and reaching a conclusion based thereon is completely wrong. What is its effect is another matter but such an approach on the part of the trial Court cannot be approved of as it does not augur well with well established and well-recognised concepts of criminal jurisprudence.
12. As has been noted above, the trial Court has not adverted to the plea taken by the accused in his statements recorded under Section 313, Cr. P.C. The learned Judge has remained confined to and content with the suggestion about consent, made to Surli in her cross-examination.
13. The trial Court has not gone beyond this suggestion and not even looked into the appellant's statement recorded under Section 313, Cr. P.C., in order to ascertain the defence-plea, not looking into the statement recorded under Section 313, Cr. P.C. and merely confined a suggestion thrown to a witness is certainly not fair. Going through the statement of the accused and his plea as recorded by the trial Court, it was a case of plain denial and false implication. Now coming to the question of suggestion about consent on her part made to prosecutrix Surli, it is this suggestion, which has been virtually substituted for proof of guilty by the trial Court and, therefore, needs to be considered in all its aspects.
14. The relevant section, regarding admission, is Section 17 and Section 18 of the Evidence Act. Section 18 of the Evidence Act deals with admission by party to proceeding or his agent. Whether a suggestion thrown by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put. are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross-examination as has been erroneously done by the learned Judge of the trial Court in the instant case. The proof of guilty required of the prosecution does not depend on the suggestion thrown to a witness.
15. On the basis of mere suggestion about consent thrown to the prosecutrix, the learned Judge of the trial Court has virtually dispensed with proof of offence of rape. An accused, as has been discussed above, is not bound by such a situation or implied admission made by the counsel. In a murder case where the defence counsel was asked by the Public Prosecutor if he was going to examine the medical witness present in the Court, the defence counsel replied in the negative. The witness was, therefore, not called to the box. The post-mortem report was on record and the Sessions Judge referred to the postmortem examination report held that it proved beyond doubt that the man was murdered. This consent, by the counsel, so stretched and urged as admission by the accused. A Division Bench of Madras High Court, as back as 1936, in Rangappa Goundan v. Emperor, AIR 1936 Madras 426: (1936 (37) Cri LJ 471) held as follows:--
'It is an elementary rule, that except by a plea of guilty, admissions dispensing with proof, as distinguished from admission which are evidential, are not permitted in a criminal tiral. (See Phipson on Evidence, p. 19). Therefore, no consent or admission by the prisoner's advocates to dispense with the medical witness could relieve the prosecution of proving by evidence the nature of the injuries received by the deceased and that the injuries were the cause of death. The consequence was that an essential element of proof of the crime alleged against the two accused was wanting, and the conviction which has taken place in the absence of this evidence cannot stand.
16. It may also be noted, as has been pointed out by a Dvision Bench of Gujarat High Court in Koli Trikam Jivraj v. State of Gujarat, AIR 1969 Gujarat 69 : (1969 Cri LJ 409), that the accused is entitled to the benefit of the plea set up by his counsel but it cannot be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is simple and not far to seek. In a criminal trial, a lawyer appear for the accused, appears to defend the accused and has no implied authority to make admissions against his client during the progress of the trial. The role of defence counsel at a criminal trial is that of assisting the accused in defending him against the charge.
17. The Rangoon High Court, as back as 1936, had occasion to deal with a similar situation where in a case of murder, where the defence stand taken by the accused was that he did not inflict any injuries. He was advised by the defence counsel to admit the assult and plead the right of private defence but the accused was persisted in his plea of denial. The Sessions Judge did not allow the defence counsel to take up the plea of right of self defence. The Rangoon High Court in appeal observed as follows:--
'Moreover, in this particular case it is not correct to say that the right of self-defence was not pleaded. It was pleaded by the pleader who was appearing for the appellant and if the pleader of the accused cannot set up a defence on his behalf, then I would ask what is the use of his appearing at the trial at all. The accused himself may on his own behalf take up a line of defence but it is equally open to his pleader on his behalf to take up another and alternative line of defence.'
[See Nqa Ba Sein v. Emperor, AIR 1936 Rangoon 1 : (1936 (37) Cri LJ 293)].
18. Lord Reading, C.J., in R. v. Lee Kun, (1915) 11 Cri App R 293, at page 300, has observed as follows:--
'the prosecution of criminals, and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law.'
19. In criminal cases a suggestion thrown to a prosecution witness under cross-examination by defence counsel cannot be used as an implied admission so as to dispense with proof of the prosecution case. It is only the plea of guilty, pleaded by an accused which can relieve the prosecution of its burden of proof. The learned Judge of the trial Court contrary to these settled principles of criminal jurisprudence has acted upon the suggestion made to the prosecutrix, about her being consenting party to the act.
20. Adverting to the line of reasoning adopted by the trial Court in negativing the suggestion of consent, learned counsel argued that even on this aspect of the matter the learned Judge has gone wrong. According to him the lack of any other corroborative evidence, such as the medical evidence and the Chemical Examiner's report, goes to support the suggestion, about consent, made by the defence counsel to Surli-prosecutrix (P.W. 1).
21. The inherent fallacy that lies in the trial Courts argument is that if (sic) all its inference of guilt are based on and drawn from a single premise, the suggestion of 'consent' made to Surli. Its whole logic and reasoning veers round 'consent'. Having held that the suggestion is not binding on the accused, even as an implied admission nor can such a suggestion dispenses with the proof of the prosecution case, it now remains to be seen whether prosecution has made out its case.
22. To begin with FIR, Ex. P. 1, as has been discussed in foregoing paras 8 and 9, it is a suspicious piece of document, it is not merely on the ground of delay, but the amply established fact that a report had been lodged by Ganpat, Surli's husband on the preceding night and the said report has been suppressed by the prosecution, Banibai Kansingh and Anbai have deposed to it, contrary elementary rules and principles it has been used against the accused as a substantive piece of evidence when the learned Judge says that it has been stated in the FIR, E. P. 1, that the (the accused) had held out threat of killing Surli a fact not stated by her in her evidence. As is well known, an FIR can only be used to corroborate or contradict the maker there. When there is not a word about the criminal intimidation to cause death, in the testimony of the prosecutrix, it defies one's understanding how can a statement contained in the FIR be used as a substantive evidence of even as a corroborative piece or evidence, when there is total lack of evidence before the Court. The trial court, was palpably wrong in making such a use of the FIR. Incidentally it is such I illegal impermissible use of the FIR which the trail Court has made to eliminate consent.
23. The reason that a married woman involved in extra marital relation, with consent, is unlikely to report and not divulge the matter to her in laws, as assigned by the trial Court is, no doubt, quite justifiable for rejecting the theory of consent, as put to the prosecutrix Surli, by the defence counsel; But what the learned Judge has failed to see is that even if this suggestion was to be rejected, and on a valid ground, that would not relieve the prosecution of its burden to prove its case. It was this further and separate issue, which the trail Court has failed to deal with.
24. The trial court ought to have considered the effect of absence of any injury whatsoever in face of her evidence that whole of her body was scratched, but Dr. Gawali who examined her next day morning did not find a single mark of injury on her body. The vaginal swab taken by her -- the GHAGHRA siezed and sent for chemical examination, the chemical examiner's report Ex. P. 8 all completely belie the prosecution story. As noted above the doctor P.W. 6, has completely ruled out any intercourse with Surli, as alleged by her It cannot be said that during the few hours that had lapsed, between commission of offence and examination of the prosecutrix, the mark of injuries would have disappeared, if nothing else, at least healed marks could well have been found. As per Chemical examiner's report no seminal stains were found, nor presence of sparmatozoa was detected. A valuable reliable corroboration is lacking in the case.
25. The evendential burden that lies on the prosecution is not discharged, by the suggestions made to its witnesses in cross-examination, as they cannot be used as implied admissions of the prosecution case, by the accused.
26. As noted above the prosecution hinges on the sole testimony of the prosecutrix and that of her relations to whom site is said to have narrated the incident on her returning home. This court is fully aware of the fact that corroboration is no longer required either as a rule of urudence or practice or as a requirement of law. According to her husband Ganpat and mother-in-law Banibai, Surli had returned home beofre sunset. Her father-in-law Kansingh P. W. 3 has placed her time of return from the jungle at 2-3 p.m. Without being very precise of time the fact remains that the report which has been placed was lodged next day morning. It was urged by the learned panel lawyer that the delay is condonable. It is not the case of belied lodging of FIR alone. It is case where an earlier report lodged, as admitted by Banibai, Kansingh, Ganpat and Surli is being deliberately withheld by the prosecution. It is this suppression of evidence which affects the varacity of the FIR placed on record. The trial Court has very conveniently omitted to consider this infirmity in the prosecution case. There is no corroboration from the medical evidence and the chemical examiner's report. The trial Court appears to have been impressed by the fact that the accused is said to have been armed with bow and arrow. It is a common sight in the tribal district of Jhabua and the complainant is also a tribal and this could hardly be a cause of terror to any tribal woman.
27. The Sureme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096), (Para 11) has held --
'We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune.'
28. In view of the infirmities pointed above, and the erroneous approach of the trial Court, in construing the suggestion as an implied admission, on the part of the accused, the conviction as recorded by it, circumstance of quick-sand, it is liable to be set aside.
29. For the foregoing reasons the conviction and sentence as recorded by the trial Court cannot be sustained, based as it is on quick-sand. They are liable to be set aside and are accordingly set aside, the appellant is acquitted of the charge framed against him. Fine, if paid, be refunded to the accused-appellant. His bail bonds stand discharged.