Lalit Kumar vs State Of Himachal Pradesh on 16 August, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 361 of 2016
Reserved on: 25.07.2017
Decided on: 16.08.2017

.

_

Lalit Kumar …..Appellant.

Versus

State of Himachal Pradesh ……Respondent.
_
Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

approved for reporting? Yes.

1 Whether

_
For the appellant: Mr. Anoop Chitkara and Ms.
rSheetal Vyas, Advocates.

For the respondent: Mr. Virender K. Verma, Addl. AG,
with Mr. Pushpinder Jaswal, Dy.

AG and Mr. Rajat Chauhan, Law

Officer, for the respondent-State.

Chander Bhusan Barowalia, Judge.

The instant appeal has been preferred by the

appellant/convict/accused (hereinafter referred to as “the

accused”) laying challenge to the judgment, dated 22.07.2016,

passed by learned Additional Sessions Judge, Sirmaur District

at Nahan, H.P. in Sessions Trial No. 9-N/7 of 2013, whereby

the accused was convicted for the commission of offence

punishable under Sections 376, read with Section 511, and

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Section 506 of Indian Penal Code, 1860 (hereinafter referred to

as “IPC”).

2. Tersely, the facts giving rise to the present appeal, as

.

per the prosecution, are that on 14.01.2013, Smt. Nirmala Devi

(complainant), lodged a report with the police that she lives in

Housing Board Colony, Nahan, alongwith her husband and

children and her husband is serving in the office of District

Sessions Court, Nahan. As per the complainant, she has two

daughters, elder daughter is 20 years of age and younger

daughter, the prosecutrix (name withheld) is about 18 years of

age. She has further alleged that on14.01.2013, around 12:30

p.m., she went to her neighbor’s house to give vegetables and

the prosecutrix was made to sit in the room, however, on her

return, around 01:00 p.m., she noticed the prosecutrix coming

out from the back door of the house of accused, who is working

as Process Server in the Court, and she was pulling her shirt

downwards. The prosecutrix was shivering, having teary eyes

and on asking she told her that the accused called her to his

room. On relentless questioning, the prosecutrix divulged that

accused opened her pant and did wrongful act with her. The

complainant checked the private parts of the prosecutrix and

noticed some liquid creamy substance. The complainant

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further alleged that prior to this incident, the accused had also

done wrongful act with the prosecutrix. Consequently, the

complainant telephonically informed her husband and when he

.

came to the house, the complainant narrated the entire

incidence to him. The husband of the complainant further

called his brother, Shri Amarjeet Singh, and all of them went to

police station for lodging a report. Report was registered and

investigation ensued. During the course of investigation, the

prosecutrix was medically examined, spot map was prepared

and the statements of the witnesses were recorded. The

accused was arrested and was medically examined. The room

of the accused was thoroughly inspected and the police took

into possession a bed sheet, at the instance of the prosecutrix,

which was sealed in a parcel having seal impression ‘I’. The

accused gave demarcation of the spot, whereupon spot map,

Ex. PW-13/D, was prepared. On 16.01.2013, the accused got

recovered one tube of ‘Boro Plus Cream’ which was taken into

possession vide separate memo, Ex. PW-5/B and the same was

sealed. The parcels were sent to SFSL, Junga, for chemical

analysis. As per the prosecution, the prosecutrix was suffering

from mild mental retardation and qua this aspect she was

medically examined by Dr. Pravesh Aggarwal and her disability

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certificate, Ex. PW-11/A, was obtained. As per the opinion of

the doctor, the mental age of the prosecutrix was opined as

seven years. The police, after completion of the investigation,

.

concluded that the accused did not commit any sexual assault

on the prosecutrix, however, he attempted to commit rape, thus

Section 376 IPC was deleted and chargesheet was filed for the

commission of offence punishable under Section 376 read with

Section 511 IPC. After completion of investigation, challan was

presented in the Court.

3. The prosecution, in order to prove its case, examined

as many as thirteen witnesses. Statement of the accused was

recorded under Section 313 Cr.P.C., wherein he denied the

prosecution case and claimed innocence. A court witness was

examined and the accused, in defence, examined a witness.

4. The learned Trial Court, vide impugned judgment

dated 25.07.2016, convicted the accused for the commission of

offence punishable under Section 376 read with Section 511

IPC and sentenced him to undergo rigorous imprisonment for

five years and to pay fine of `20,000/- and in default of

payment of fine, he was further ordered to undergo simple

imprisonment for two months. The accused was further

sentenced to undergo simple imprisonment for six months and

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to pay fine of `5000/- and in default of payment of fine, to

undergo simple imprisonment for one month for the offence

punishable under Section 506 IPC. The learned Trial Court

.

also ordered that out of the fine amount, `20,000/- shall be

paid to the prosecutrix, as compensation, hence the present

appeal.

5. I have heard Mr. Anoop Chitkara, Advocate, learned

Counsel for the appellant (accused) and Mr. Virender K. Verma,

learned Additional Advocate General for the respondent/State.

6. Mr. Chitkara has argued that the story of the

prosecution is totally improbable and unconvincing. The

findings of conviction, as recorded by the learned Court below,

are based on surmises and conjectures and the learned Court

below has failed to take into consideration the evidence to its

true perspective. He has further argued that the statements of

the witnesses are contradictory and do not inspire confidence.

The learned Court below, without their being any evidence on

record, has passed the conviction and sentenced the appellant,

which is required to be set-aside. In contrast to what has been

argued by the learned counsel for the appellant, Mr. Verma,

learned Additional Advocate General, has argued that the

accused has committed a heinous crime in the broad day light.

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He has further argued that statements of PW-1, Smt. Nirmala

Devi (mother of the prosecutrix), and the prosecutrix clearly

prove the guilt of the accused, thus no interference is required

.

in the well reasoned judgment passed by the learned Trial

Court. He has prayed that the appeal is without merits and the

same may be dismissed.

7. In rebuttal, Mr. Chitkara has vehemently argued

that the statement of PW-1, Smt. Nirmala Devi, is wholly

unreliable, as there are material contradictions in it and the

statement of the prosecutrix also cannot be relied upon, as the

her version did not find any lateral support from the medical

evidence/forensic report. He has further argued that the

prosecution has failed to connect the accused with the alleged

offence and so the presence of the accused on the spot of

occurrence at the relevant time is shrouded with doubt. He has

argued that it is emanating that the accused was found fit for

performing sexual intercourse and the prosecutrix has also

deposed that earlier to the alleged occurrence, the accused had

committed bad act with her, however, the medical evidence

does not support this part of the statement of the prosecutrix.

He has argued that in the above enumerated circumstances,

the appellant cannot be convicted, as the prosecution has failed

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to prove the guilt of the accused beyond the shadow of

reasonable doubt.

8. In order to appreciate the rival contentions of the

.

parties, I have gone through the record carefully and in detail.

9. PW-1, Smt. Nirmala Devi (mother of the prosecutrix)

deposed that her younger daughter (prosecutrix) was studying

in 10th standard and her date of birth is 16.10.1994. On

14.01.2013, around 12:30 p.m., the prosecutrix was made to

sit in the room and she went to neighbor’s house for giving

vegetables. On her return, after 10/12 minutes, she did not

find the prosecutrix in the room and she repeatedly called out

the prosecutrix from her nick name. Owing to her calls the

prosecutrix came out from the room of the accused. She was

shivering and adjusting her dress. The prosecutrix disclosed to

PW-1 that the accused has called her. The prosecutrix was

weeping and when PW-1 asked her why she is weeping, she

divulged that she could not tell as the accused told her to kill

her parents, in case she divulges anything to anyone. On

relentless inquires, the prosecutrix disclosed that accused

committed sexual assault upon her. Subsequently, PW-1

telephoned her husband and when he came from his office, she

disclosed the incident to him. This witness has further deposed

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that they called their relative, Amarjeet, who met them en route

police station. She has further deposed that she, her husband,

prosecutrix and Amarjeet went to Police Station, Nahan, and

.

lodged FIR, Ex. PW-1/A. The prosecutrix was medically

examined and police investigated the matter. This witness, in

her cross-examination, has deposed that when she was

standing on the back door of her accommodation, she herself

saw the prosecutrix coming out from the room of the accused.

The rooms of the accused were in the same building and she

searched the prosecutrix in her two rooms, kitchen, bathroom,

thereafter, she called out the name of the prosecutrix from

inside the rooms. She has deposed that there was a gali

(street) towards the back side of their accommodation where

they had installed a chulaha (hearth) for heating water and for

preparing chapaties. She denied the suggestion that smoke of

the hearth used to go to the house of the accused for which the

accused objected many times. She also denied the suggestion

that due to the installation of said hearth, the accused and

their family used to have altercations.

10. The prosecutrix was examined as PW-2. She has

deposed that in the year 2013 she was studying in 9th class and

on the day of occurrence when she was studying in her room,

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her mother had gone to the house of neighbour (Smt. Anju) for

giving vegetables, the accused called her in his room. She went

to the room of the accused and he opened her pant and she was

.

laid down on the bed by him. She has further deposed

thereafter the accused committed bad act with her. The

accused also applied cream and massaged her private parts.

The prosecutrix has further deposed that earlier also the

accused had done bad act with her. She has deposed that

accused threatened that he will kill her parents, in case she

discloses anything to anyone. As per the statement of the

prosecutrix, when her mother called her, she came out from the

back door of the accommodation of the accused. Thereafter,

she narrated the entire incidence to her mother and she

checked her private part and found cream thereon. Her mother

informed her father and thereafter she was taken to police

station by her mother, father and uncle Amarjeet. She was

medically examined. The police visited the spot and she

identified bed sheet, Ex. P-2, which was taken into possession

by the police, vide seizure memo Ex. PW-2/A. The prosecutrix,

in her cross-examination, could not tell when earlier sexual

assault was committed by the accused. She has further

deposed that she never saw the tube of borolin cream. She also

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could not tell that for how long she remained in the room of the

accused. As per her statement, she was taken to the same

room of the accused by the police on the next day. She did not

.

tell to the police qua the threatening given by the accused.

11. PW-3, Shri Amarjeet Singh, uncle of the prosecutrix,

deposed that on 14.01.2013 his brother Shri Devinder Singh

(PW-11) called him to his accommodation. He met his brother,

his wife (Smt. Nirmala Devi, PW-1) and the prosecutrix en route

to police station. The parents of the prosecutrix informed him

about the occurrence. Smt. Nirmala Devi, PW-1, lodged a

report in the police station and prosecutrix was taken for

medical examination. On the subsequent day, the prosecutrix

identified the room and a bed sheet. The identified bed sheet

was taken into possession vide memo Ex. PW-2/A and was

sealed in a cloth parcel, which was signed by the prosecutrix

and by him. This witness, in his cross-examination, has

deposed that where the accused and the prosecutrix used to

reside, there are 30 to 40 government accommodations. As per

this witness, he was with the prosecutrix when she was taken

to hospital for medical examination. He feigned his ignorance

whether the police visited the house of the prosecutrix and the

accused on the same day or not. He also feigned his ignorance

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whether on the day of occurrence there were vacations in the

school. He further deposed that he did not go in the room of

the accused when the police visited the spot and bed sheet, Ex.

.

P-2, was shown to him by the police in the lawn of the

government accommodation. As per this witness, no

neighbours were present when the bed sheet, Ex. P-2, was

taken into possession. He also feigned his ignorance that due

to the smoke of the hearth, there was dispute between the

accused and the parents of the prosecutrix.

12. PW-4, Smt. Anju Sharma, deposed that on

14.01.2013, around 12:30 – 12:45 p.m., Smt. Nirmala Devi

(PW-1) came to her house for giving vegetables to her. After

giving vegetables to her and talking with her, she returned to

her house. Subsequently, she (PW-4) came to know about the

occurrence. This witness, in her cross-examination, has

deposed that there are two accommodations in between their

house and the house of Smt. Nirmala Devi (PW-1). As per this

witness, PW-1 told her that she has brought vegetables from

the village. Smt. Nirmala Devi (PW-1) stayed in her house for

about a minute. PW-5, Constable Sanjeev Kumar, deposed that

on 16.01.2013 the accused gave demarcation of his house at

Housing Board Colony, Nahan, and memo, Ex. PW-5/A, was

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prepared in this regard, which bears his signatures. He has

further deposed that accused also got recovered a tube of

boroplus cream from a room of his accommodation and the

.

same was used tube. The said tube was put in a cloth parcel

and sealed with seal impression ‘I’ at two places and facsimile

seal was separately taken on a piece of cloth. As per this

witness, said parcel was taken into possession, vide memo Ex.

PW-5/B, which was signed by him. This witness, in his cross-

examination, has deposed that the Investigating Officer did not

make any inquiry from the accused in his presence. Head

Constable Gurdayal Singh recovered tube, Ex. P-4, of boroplus

cream when two-three persons were present there. As per this

witness, tube of boroplus cream was lying in the next room on

double bed. Memo, Ex. PW-5/A, qua demarcation of the house

of the accused and seizure of a tube of boroplus cream, Ex. PW-

5/B, were prepared by HC Gurdayal Singh.

13. Dr. Gopal Ashish Sharma, Medical Officer, R.H.

Nahan (PW-6), deposed that on 15.01.2013, police moved

application, Ex. PW-6/A, for conducting medical examination of

the accused and the same was marked to him. He conducted

the medical examination of the accused and found no signs of

fresh injury on any part of the body of the accused. He found

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the accused fit to perform sexual act. He preserved the

underwear and pubic hair of the accused, which were sealed

and handed over to the police by him. He issued medico legal

.

certificate, Ex. PW-6/B, qua the accused. This witness, in his

cross-examination, has deposed that by naked eyes he did not

see any stains on the underwear and pubic hair of the accused.

14. PW-7, Constable Raj Kumar, deposed that on

19.01.2013, MHC, Sandeep Negi, vide RC No. 11/13, dated

19.01.2013, handed over to him six sealed parcels with sample

seals ‘RH’ and ‘I’ for being deposited in State Forensic Science

Laboratory, Junga. As per his statement, he deposited the said

case property on the same day in State Forensic Science

Laboratory, Junga, and on return RC was handed over to MHC.

The case property remained intact under his custody. PW-8,

HHC Krishan Kumar, deposed that on 14.01.2013 and

15.01.2013, he videographed the statements of Nirmala Devi

and other witnesses and converted the same into CD, which

was handed over to the police on 20.01.2013. This witness, in

his cross-examination, has deposed that on 14.01.2013 he

videographed the statement of Nirmala Devi (PW-1) at Police

Station, Nahan and on 15.01.2013, he videographed the

statement of the prosecutrix in Housing Board Colony.

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15. PW-9, Dr. Shahida Ali, S.M.O., R.H. Nahan, deposed

that on 14.01.2013 police moved an application, Ex. PW-9/A,

for medical examination of the prosecutrix, who was brought

.

with alleged history of sexual intercourse, and she conducted

her medical examination. The version of this witness is re-

extracted as under:

“On examination:- She was wearing the
same dress and underwear, passed urine one

time after the incident, there was no difficulty
in urination. Her gait was normal.

On examination:- No injury mark was found
on lips, cheeks, neck, breasts, chest, back and

abdomen. Dark pink coloured underwear

having staining on inner side sealed and
handed over to the police for forensic lab
examination. Pubic hair 3 cm long not matted
shaved sealed and handed over to the police
for forensic lab report. No staining or injury

mark found on inner sides of thighs. Labia
majora minora well developed and no staining
seen on external genetalia. Her hymen was
found intact, forchette intact, swab taken from

the vagina. Smear formed on slide, dried and
slide handed over to the police for forensic lab
report.

Per vaginal examination:- Vagina admits
one finger with difficulty, uterous was normal

size and non-tender. The forensic report
received on 14 February, 2013 and as per the
report blood and semen was not detected on
vaginal smear slides, pubic hair and
underwear.”

As per the final opinion of this witness, there was nothing

suggesting fresh sexual intercourse. She issued Medico Legal

Certificate, Ex. PW-9/B, qua the prosecutrix, which bears her

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signatures.

16. PW-10, Head Constable Sandeep Negi, deposed that

on 14.01.2013, Lady Constables Vijay Laxmi and Laxmi handed

.

over to him two parcels of cloth, which were sealed with seal

impression ‘RH’ alongwith samples of seal. He made entry to

this effect in malkhana register at Sr. No. 205. He has further

deposed that on 15.01.2013, Constable Raj Kumar, gave to him

three sealed parcels of cloth, which were sealed with seal

impression ‘RH’ alongwith a sample of seal and he made entry

to this effect in the malkhana register at Sr. No. 207/13. On

the same day, that is, 15.01.2013, ASI Lekh Raj also gave him a

sealed parcel of cloth, which was sealed with seal impression ‘I’

and he made entry to this effect in the malkhana register at

Sr.No. 208/13. On 16.01.2013, ASI Lekh Raj handed over to

him a sealed parcel of cloth, which was sealed with seal

impression ‘I’, alongwith sample of seal impression ‘I’. To this

effect, he made an entry in the malkhana register at Sr. No.

210/13. He has further deposed that the said case property

was handed over to Constable Raj Kumar for being depositing

at State Forensic Science Laboratory, Junga, vide RC No.

11/13, dated 19.01.2013. Constable Raj Kumar, after

depositing the case property in State Forensic Science

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Laboratory, Junga, handed over to him RC.

17. PW-11, Shri Devinder Singh (father of the

prosecutrix) deposed that he is working as Civil Ahlmad in the

.

Court of Additional District and Sessions Judge, Sirmaur at

Nahan and he used to reside with his family in government

accommodation, New Housing Board Colony, Nahan. As per

this witness, his daughter (prosecutrix) was about 19 years of

age and suffering from mild mental retardation. On 14.01.2013

when he was working in his office, he received mobile call from

his wife (PW-1), who asked him to come immediately. When he

reached the house, his wife narrated the incident to him. As

per this witness, the prosecutrix, who was panic-stricken,

narrated the incident to him. He informed his younger brother,

Shri Amar Jeet Singh (PW-3), on mobile phone and

subsequently went to Police Station for lodging the report. As

per this witness, the prosecutrix was medically examined in

Government Hospital and his wife (PW-1) got identified the

house of the accused. He has further deposed that the

prosecutrix was examined qua mils mental retardation and

report in this regard is Ex. PW-11/A. This witness, in his

cross-examination, has deposed that he, in his statement under

Section 161 Cr.P.C. recorded by the police, divulged that his

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wife (PW-1) went to the house of Smt. Anju (PW-4) at 12:30 p.m.

and returned at 01:00 p.m. He further deposed that he

divulged to the police that the prosecutrix is mentally retarded,

.

whereas in his statement recorded by the police it is not so

recorded.

18. PW-12, Dr. Pravesh Aggarwal, Medical Officer, R.H.

Nahan, deposed that on 20.04.2013 he referred the prosecutrix

to PGI, Chandigarh, for intelligence quotient assessment. The

prosecutrix was examined at PGI, Chandigarh, by Dr. Devinder

Kumar Rana, and the intelligence quotient of the prosecutrix

was assessed as 51 (mild mental retardation). He has further

deposed that the mental age of the prosecutrix was assessed as

seven years. On the basis of the report of the PGI, Chandigarh,

District Medical Board of District Sirmaur, of which he was a

member, gave 40% disability certificate, vide certificate No. 251,

dated 15.06.2013, copy of which is Ex. PW-11/A. This

witness, in his cross-examination, has denied the suggestion

that a false disability certificate had been issued by them.

19. PW-13, SI Lekh Raj (Investigating Officer), deposed

that on 14.01.2013, at 03:30 p.m., Smt. Nirmala Devi (PW-1)

alongwith her husband, Devinder Singh (PW-11) and the

prosecutrix (PW-2) came to police station for lodging FIR, Ex.

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PW-1/A. Thereafter, the police by moving application, Ex. PW-

9/A, got the prosecutrix medically examined and the medico

legal certificate, Ex. PW-9/B, was obtained. As per this

.

witness, on the same day, i.e., 14.01.2013, sets No. 15 and 16

of Housing Board Colony were inspected at the instance of

complainant (PW-1) and spot map, Ex. PW-13/A, was prepared.

The accused was interrogated on the same day around 08:30

p.m. On 15.01.2013, through application, Ex. PW-6/A, the

accused was medically
r examined and his medico legal

certificate, Ex. PW-6/B, was obtained. The accommodation of

the accused was again inspected on 15.01.2013 at the instance

of the prosecutrix and the prosecutrix identified the room and a

bed sheet was taken into possession, which was sealed in a

cloth parcel having seal impression ‘I’ at three places.

Facsimile seal, Ex. PW-13/B, was also taken on a separate

piece of cloth and recovery memo, Ex. PW-2/A, was prepared,

which was signed by Surender Singh, Amarjeet, as witnesses,

and by the prosecutrix. Spot map, Ex. PW-13/C, was prepared.

On 16.01.2013 the accused gave demarcation at Set No. 15,

Housing Board Colony, Nahan, and spot map, Ex. PW-13/D,

was prepared at the instance of the accused. Memo of spot, Ex.

PW-5/A, was prepared and the accused got recovered a tube of

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boroplus cream from second room and the same was enwrapped

in a cloth parcel having seal impression ‘I’, which was taken

into possession vide memo, Ex. PW-5/B. Ex. PW-5/B was

.

signed by the accused and Constable Sanjeev Kumar. This

witness, in his cross-examination, has deposed that when he

reached the spot on 14.01.2013, the accommodation of the

accused was found closed and on 15.01.2013 son of the

accused (Surender) came to the police station with a key,

thereafter, the accommodation of the accused was opened

around 10:15 a.m. in his presence and the prosecutrix, her

mother, father and uncle were called. He has further deposed

that on 14.01.2013 he did not go inside the accommodation of

the accused. As per this witness, on 15.01.2013 entire house

of the accused was searched and on 16.01.2013 boroplus cream

was found on the dressing table. He did not record any

statement of the accused under Section 27 of the Indian

Evidence Act qua recovery of boroplus cream.

20. The learned Trial Court vide its order dated

14.10.2015 summoned CW-1, Shri Devinder Kumar Rana,

Clinical Psychologist Department of Psychiatry, PGI,

Chandigarh, and his testimony was recorded on 17.12.2015.

As per this witness, on Gessel’s Drawing Test, the mental age of

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the prosecutrix was found seven years and performance

quotient (PQ) was 50, on Seguin Form Board Test (SFBT) her

mental age was found eight years and her PQ was 57 and on

.

Vineland Social maturity Scale (VSMS) her social age was found

6.3 years and her social quotient (SQ) was 45. In ratiocination,

this witness found the prosecutrix suffering from mild mental

retardation. He has issued detailed examination report, which

is Ex. CW-1/A. This witness was subjected to exhaustive

cross-examination, but nothing substantial could be elicited

from him.

21. The accused, in defence, has examined DW-1, Shri

Nasir Ali Kadri, Superintendent, Grade-II, Government Girls

Senior Secondary School, Nahan. He has only brought the

question papers of 9th class examination conducted in the year

2013. This witness, in his cross-examination, deposed that as

per the prevailing education policy, no student is declared failed

up to 8th standard.

22. Keeping in view the facts of the present case,

following judicial pronouncements become relevant for

adjudication of this case:

1. State of Kerala vs. Anilachandran @
Madhu and others, 2009 (13) SCC 565;

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2. Rai Sandeep @ Deepu vs. State of NCT of
Delhi, 2012 (8) SCC 21;

3. Narender Kumar vs. State (NCT of Delhi),
2012 (7) SCC 171;

.

4. Abbas Ahmad Choudhary vs. State of

Assam, 2010 (12) SCC 115;

5. Radhu vs. State of Madhya Pradesh, 2007

(12) SCC 57;

6. Aman Kumar vs. State of Haryana, 2004
(4) SCC 379.

23. The Hon’ble Supreme Court in State of Kerala vs.

Anilachandran alias Madhu and others, (2009) 13

Supreme Court Cases 565, it was held that onus to prove the

plea of alibi lies on the shoulders of the person pleading it, but

merely as the accused was not able to prove his defence, it

cannot be presumed that the prosecution case is proved against

him. Relevant paras of the judgment (supra) are extracted

hereinbelow:

“14. In the instant case the High Court found that not

only the document appeared, to be suspicious but
in addition there was considerable delay in
sending it to Ilaka Magistrate. Added to the
aforesaid aspects, the noticeable variation in the
evidence of PWs 1 and 3 has been highlighted by
the High Court. The role played by PWs 1 and 3
while the deceased was being assaulted has been
analysed in great detail. The High Court has
noticed that even if the prosecution version
about the role of A. 1 is accepted to be true, since
the genesis of the incident has not been
established, it will be unsafe to record his
conviction.

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15. The High Court has noticed that crime was not
committed in the manner as suggested by the
prosecution and the genesis of the incident is not
established. Even if a plea of alibi is set up by the
accused and is discarded, that does not take

.

away the duty of the prosecution to prove beyond

reasonable doubt that the accused persons were
guilty. It is certainly the duty of the persons who
plead alibi to prove it beyond reasonable doubt.
Merely because the accused was not able to

prove his defence, it cannot be presumed that the
prosecution case is proved against him.”

24. The Hon’ble Supreme Court in Rai Sandeep alias

Deepu vs. State (NCT of Delhi), (2012) 8 SCC 21, the

conviction of the accused was reversed on the ground that there

were material contradictions in the evidence and the

prosecutrix portrayed conflicting versions from what was stated

in the complaint and what she deposed before the Court.

Apposite paras of the judgment (supra) are extracted

hereinbelow for ready reference:

“21. The other discrepancies which are to be
mentioned are the categorical statement of the
prosecutrix (PW-4) herself that after the alleged

forcible sexual intercourse by both the accused,
she wiped of her private parts with a red colour
socks which was lying in the house, though at
another place it was stated that both the accused
used the red colour socks to wipe of their private
parts after the commission of the offence.
Assuming both the versions to be true, we find
that the red colour socks sent for chemical
examination revealed that it did not contain any
semblance of semen in it as per the FSL report
Exhibit PW- 14/N. It was also pointed out that
while according to her the socks was handed over
to the police in the hospital when the petticoat

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23

and the socks were seized from her, according to
the seizure memo the socks was recovered from
the place of occurrence. She was a married
woman and except the semen found in the
petticoat, there is no other reliable evidence for
implicating the accused-appellants to the crime

.

alleged against them. In this background, when

we refer to the oral version of the prosecutrix
(PW-4), as pointed out by learned counsel for the
appellant, very many facts which were not found
in her original statement were revealed for the

first time before the Court.

22. In our considered opinion, the sterling witness
should be of a very high quality and caliber
whose version should, therefore, be unassailable.

The Court considering the version of such
witness should be in a position to accept it for its
face value without any hesitation. To test the
quality of such a witness, the status of the
witness would be immaterial and what would be

relevant is the truthfulness of the statement
made by such a witness. What would be more

relevant would be the consistency of the
statement right from the starting point till the
end, namely, at the time when the witness makes
the initial statement and ultimately before the

Court. It should be natural and consistent with
the case of the prosecution qua the accused.
There should not be any prevarication in the
version of such a witness. The witness should be

in a position to withstand the cross- examination
of any length and strenuous it may be and under
no circumstance should give room for any doubt

as to the factum of the occurrence, the persons
involved, as well as, the sequence of it. Such a
version should have co-relation with each and

everyone of other supporting material such as
the recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even be
stated that it should be akin to the test applied in
the case of circumstantial evidence where there
should not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of
such a witness qualifies the above test as well as
all other similar such tests to be applied, it can be

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24

held that such a witness can be called as a
sterling witness whose version can be accepted
by the Court without any corroboration and
based on which the guilty can be punished. To be
more precise, the version of the said witness on
the core spectrum of the crime should remain

.

intact while all other attendant materials,

namely, oral, documentary and material objects
should match the said version in material
particulars in order to enable the Court trying
the offence to rely on the core version to sieve the

other supporting materials for holding the
offender guilty of the charge alleged.

23. On the anvil of the above principles, when we test
the version of PW-4, the prosecutrix, it is

unfortunate that the said witness has failed to
pass any of the tests mentioned above. There is
total variation in her version from what was
stated in the complaint and what was deposed
before the Court at the time of trial. There are

material variations as regards the identification
of the accused persons, as well as, the manner in

which the occurrence took place. The so-called
eye witnesses did not support the story of the
prosecution. The recoveries failed to tally with
the statements made. The FSL report did not co-

relate the version alleged and thus the
prosecutrix failed to instill the required
confidence of the Court in order to confirm the
conviction imposed on the appellants.

24. With the above slippery evidence on record
against the appellants when we apply the law on

the subject, in the decision reported in State of
Punjab v. Gurmit Singh Ors., this Court was
considering the case of sexual assault on an

young girl below 16 years of age who hailed from
a village and was a student of 10th standard in
the Government High School and that when she
was returning back to her house she was
kidnapped by three persons. The victim was
stated to have been taken to a tubewell shed of
one of the accused where she was made to drink
alcohol and thereafter gang raped under the
threat of murder. The prosecutrix in that case
maintained the allegation of kidnapping as well
as gang rape. However, when she was not able to
refer to the make of the car and its colour in
which she was kidnapped and that she did not

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25

raise any alarm, as well as, the delay in the
lodging of the FIR, this Court held that those were
all circumstances which could not be adversely
attributed to a minor girl belonging to the poor
section of the society and on that score, her
version about the offence alleged against the

.

accused could not be doubted so long as her

version of the offence of alleged kidnapping and
gang rape was consistent in her evidence. We,
therefore, do not find any scope to apply
whatever is stated in the said decision which was

peculiar to the facts of that case, to be applied to
the case on hand.

25. In the decision reported in Ashok Kumar v. State
of Haryana, this court while dealing with the

offence under Section 376 (2) (g) IPC read with
explanation held as under in Para 8:

“8. Charge against the appellant is under
Section 376(2)(g) IPC. In order to
r establish an offence under Section
376(2)(g) IPC, read with Explanation I

thereto, the prosecution must adduce
evidence to indicate that more than
one accused had acted in concert and
in such an event, if rape had been

committed by even one, all the
accused will be guilty irrespective of
the fact that she had been raped by
one or more of them and it is not

necessary for the prosecution to
adduce evidence of a completed act of
rape by each one of the accused. In

other words, this provision embodies
a principle of joint liability and the
essence of that liability is the

existence of common intention; that
common intention presupposes prior
concert which may be determined
from the conduct of offenders revealed
during the course of action and it
could arise and be formed suddenly,
but, there must be meeting of minds. It
is not enough to have the same
intention independently of each of the
offenders. In such cases, there must be
criminal sharing marking out a
certain measure of jointness in the
commission of offence.”

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26

26. Applying the above principle to the case on hand,
we find that except the ipse-dixit of the
prosecutrix that too in her chief examination,
with various additions and total somersault in
the cross examination with no support at all at

.

the instance of her niece and nephew who

according to her were present in the house at the
time of occurrence, as well as, the FSL report
which disclosed the absence of semen in the
socks which was stated to have been used by the

accused as well as the prosecutrix to wipe of
semen, apart from various other discrepancies
in the matter of recoveries, namely, that while
according to the prosecutrix the watch snatched
away by the accused was Titan while what was

recovered was Omex watch, and the chain which
was alleged to have been recovered at the
instance of the accused admittedly was not the
one stolen, all the above factors do not
convincingly rope in the accused to the alleged

offence of gang rape on the date and time alleged
in the chargesheet.

27. In the decision reported as State of Himachal
Pradesh v. Asha Ram, 2006 AIR(SC) 381, this
Court highlighted the importance to be given to

the testimony of the prosecutrix as under in para
5:

“5. ..It is now well-settled principle of law

that conviction can be founded on the
testimony of the prosecutrix alone
unless there are compelling reasons

for seeking corroboration. The
evidence of a prosecutrix is more
reliable than that of an injured

witness. The testimony of the victim of
sexual assault is vital, unless there are
compelling reasons which necessitate
looking for corroboration of her
statement, the courts should find no
difficulty in acting on the testimony of
a victim of sexual assault alone to
convict an accused where her
testimony inspires confidence and is
found to be reliable. It is also a well-

settled principle of law that
corroboration as a condition for
judicial reliance on the testimony of

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27

the prosecutrix is not a requirement of
law but a guidance of prudence under
the given circumstances. The evidence
of the prosecutrix is more reliable
than that of an injured witness. Even
minor contradictions or insignificant

.

discrepancies in the statement of the

prosecutrix should not be a ground for
throwing out an otherwise reliable
prosecution case.”

28. Asha Ram was a case where the father alleged
to have committed the offence of rape on one of
his daughters who was staying with him while
his wife was living separately due to estranged
relationship. While dealing with the said case,

where the prosecutrix, namely, the daughter,
apart from the complaint lodged by her,
maintained her allegation against her father in
the Court as well. This Court held that the version
of the prosecutrix in the facts and circumstances

of that case merited acceptance without any
corroboration, inasmuch as, the evidence of rape

victim is more reliable even that of an injured
witness. It was also laid down that minor
contradictions and discrepancies are
insignificant and immaterial in the case of the

prosecutrix can be ignored.

29. As compared to the case on hand, we find that
apart from the prosecutrix not supporting her

own version, the other oral as well as forensic
evidence also do not support the case of the
prosecution. There were material contradictions

leave alone lack of corroboration in the evidence
of the prosecutrix. It cannot be said that since
the prosecutrix was examined after two years

there could be variation. Even while giving
allowance for the time gap in the recording of
her deposition, she would not have come forward
with a version totally conflicting with what she
stated in her complaint, especially when she was
the victim of the alleged brutal onslaught on her
by two men that too against her wish. In such
circumstances, it will be highly dangerous to rely
on such version of the prosecutrix in order to
support the case of the prosecution.

30. In the decision reported as Lalliram Anr. v.

State of Madhya Pradesh in regard to an offence

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28

of gang rape falling under Section 376 (2) (g)
IPC this Court laid down the principles as under
in paras 11 and 12:

“11. It is true that injury is not a sine qua
non for deciding whether rape has

.

been committed. But it has to be

decided on the factual matrix of each
case. As was observed by this Court in
Pratap Misra v. State of Orissa where
allegation is of rape by many persons

and several times but no injury is
noticed that certainly is an important
factor and if the prosecutrix’s version
is credible, then no corroboration is
necessary. But if the prosecutrix’s

version is not credible then there
would be need for corroboration. (See
Aman Kumar v. State of Haryana.)

12. As rightly contended by learned
r counsel for the appellants, a decision
has to be considered in the

background of the factual scenario. In
criminal cases the question of a
precedent particularly relating to
appreciation of evidence is really of no

consequence. In Aman Kumar case it
was observed that a prosecutrix
complaining of having been a victim of
the offence of rape is not an

accomplice. There is no rule of law
that her testimony cannot be acted
upon without corroboration in

material particulars. She stands on a
higher pedestal than the injured
witness. In the latter case there is

injury in the physical form while in
the former both physical as well as
psychological and emotional. However,
if the court finds it difficult to accept
the version of a prosecutrix on the
face value, it may search for evidence
direct or circumstantial.”

31. When we apply the above principles to the case
on hand, we find the prevaricating statements of
the prosecutrix herself in the implication of the
accused to the alleged offence of gang rape.
There is evidence on record that there was no

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29

injury on the breast or the thighs of the
prosecutrix and only a minor abrasion on the
right side neck below jaw was noted while
according to the prosecutrix s original version,
the appellants had forcible sexual intercourse
one after the other against her. If that was so, it

.

is hard to believe that there was no other injury

on the private parts of the prosecutrix as
highlighted in the said decision. When on the
face value the evidence is found to be defective,
the attendant circumstances and other evidence

have to be necessarily examined to see whether
the allegation of gang rape was true.

Unfortunately, the version of the so called eye
witnesses to at least the initial part of the crime
has not supported the story of the prosecution.

The attendant circumstances also do not co-relate
to the offence alleged against the appellants.
Therefore, in the absence of proper
corroboration of the prosecution version to the
alleged offence, it will be unsafe to sustain the

case of the prosecution.

32. In the decision reported as Krishan Kumar Malik
v. State of Haryana in respect of the offence of
gang rape under Section 376 (2) (g), IPC, it has
been held as under in paras 31 and 32:

“31. No doubt, it is true that to hold an
accused guilty for commission of an
offence of rape, the solitary evidence

of the prosecutrix is sufficient
provided the same inspires confidence
and appears to be absolutely

trustworthy, unblemished and should
be of sterling quality. But, in the case
in hand, the evidence of the

prosecutrix, showing several lacunae,
which have already been projected
hereinabove, would go to show that
her evidence does not fall in that
category and cannot be relied upon to
hold the appellant guilty of the said
offences.

32. Indeed there are several significant
variations in material facts in her
Section 164 statement, Section 161
statement (CrPC), FIR and deposition
in court. Thus, it was necessary to get

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30

her evidence corroborated
independently, which they could have
done either by examination of Ritu, her
sister or Bimla Devi, who were present
in the house at the time of her alleged
abduction. The record shows that

.

Bimla Devi though cited as a witness

was not examined and later given up
by the public prosecutor on the
ground that she has been won over by
the appellant.”

33. Applying the said principles to the facts of the
case on hand, we find that the solitary version of
the chief examination of PW-4, the prosecutrix
cannot be taken as gospel truth for its face value

and in the absence of any other supporting
evidence, there is no scope to sustain the
conviction and sentence imposed on the
appellants.”

25. The Hon’ble Supreme Court in Narender Kumar vs.

State (NCT Delhi), 2012 (7) SCC 171, it was held that in case

the evidence is read in its totality and the story projected by the

prosecutrix is found to be improbable, the prosecutrix’s case

becomes liable to be rejected. Relevant paras of the judgment

(supra) are reproduced hereinbelow:

“28. The courts while trying an accused on the charge

of rape, must deal with the case with utmost
sensitivity, examining the broader probabilities
of a case and not get swayed by minor
contradictions or insignificant discrepancies in
the evidence of witnesses which are not of a
substantial character.

29. However, even in a case of rape, the onus is
always on the prosecution to prove, affirmatively
each ingredient of the offence it seeks to
establish and such onus never shifts. It is no part
of the duty of the defence to explain as to how
and why in a rape case the victim and other

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31

witness have falsely implicated the accused.
Prosecution case has to stand on its own legs and
cannot take support from the weakness of the
case of defence. However great the suspicion
against the accused and however strong the
moral belief and conviction of the court, unless

.

the offence of the accused is established beyond

reasonable doubt on the basis of legal evidence
and material on the record, he cannot be
convicted for an offence. There is an initial
presumption of innocence of the accused and the

prosecution has to bring home the offence
against the accused by reliable evidence. The
accused is entitled to the benefit of every
reasonable doubt. (Vide: Tukaram Anr. v. The
State of Maharashtra, 1979 AIR(SC) 185; and

Uday v. State of Karnataka, 2003 AIR(SC) 1639).

30. The prosecution has to prove its case beyond
reasonable doubt and cannot take support from
the weakness of the case of defence. There must

be proper legal evidence and material on record
to record the conviction of the accused.

Conviction can be based on sole testimony of the
prosecutrix provided it lends assurance of her
testimony. However, in case the court has reason
not to accept the version of prosecutrix on its

face value, it may look for corroboration. In case
the evidence is read in its totality and the story
projected by the prosecutrix is found to be
improbable, the prosecutrix’s case becomes liable

to be rejected.

31. The court must act with sensitivity and

appreciate the evidence in totality of the
background of the entire case and not in the
isolation. Even if the prosecutrix is of easy

virtue/unchaste woman that itself cannot be a
determinative factor and the court is required to
adjudicate whether the accused committed rape
on the victim on the occasion complained of.

32. The instant case is required to be decided in the
light of the aforesaid settled legal propositions.
We have appreciated the evidence on record and
reached the conclusions mentioned hereinabove.
Even by any stretch of imagination it cannot be
held that the prosecutrix was not knowing the
appellant prior to the incident. The given facts
and circumstances, make it crystal clear that if

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32

the evidence of the prosecutrix is read and
considered in totality of the circumstances
alongwith the other evidence on record, in which
the offence is alleged to have been committed, we
are of the view that her deposition does not
inspire confidence. The prosecution has not

.

disclosed the true genesis of the crime. In such a

fact-situation, the appellant becomes entitled to
the benefit of doubt.”

26. The Hon’ble Supreme Court in Abbas Ahmad

Choudhary vs. State of Assam, 2010 (12) SCC 115, it was

held that statement of the prosecutrix must be given primary

consideration, but, at the same time, broad principle that

prosecution has to prove its case beyond reasonable doubt

applies equally to a case of rape and there can be no

presumption that a prosecutrix would always tell the entire

story truthfully. Apt paras of the judgment (supra) are

reproduced in extensor hereunder:

“9. We are however, of the opinion that the
involvement of Abbas Ahmad Choudhary seems

to be uncertain. It must first be borne in mind
that in her statement recorded on 17th
September, 1997, the prosecutrix had not

attributed any rape to Abbas Ahmad Choudhary.
Likewise, she had stated that he was not one of
those who kidnapped her and taken to Jalalpur
Tea Estate and on the other hand she
categorically stated that while she along with
Mizazul Haq and Ranju Das were returning to
the village that he had joined them somewhere
along the way but had still not committed rape
on her. It is true that in her statement in court
she has attributed rape to Abbas Ahmad
Choudhary as well, but in the light of the
aforesaid contradictions some doubt is created
with regard to his involvement.

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33

10. Some corroboration of rape could have been
found if Abbas Ahmad Choudhary too had been
apprehended and taken to the police station by
P.W.5 -Ranjit Dutta the Constable. The Constable,
however, made a statement which was

.

corroborated by the Investigating Officer that

only two of the appellants Ranju Das and Md.
Mizalul Haq along with the prosecutrix had been
brought to the police station as Abbas Ahmad
Choudhary had run away while en route to the

police station. Resultantly, an inference can be
rightly drawn that Abbas Ahmad Choudhary was
perhaps not in the car when the complainant
and two of the appellants had been apprehended
by Constable Ranjit Dutta. We are, therefore, of

the opinion that the involvement of Abbas
Ahmad Choudhary is doubtful.

11. We are conscious of the fact that in a matter of
rape, the statement of the prosecutrix must be

given primary consideration, but, at the same
time, the broad principle that the prosecution

has to prove its case beyond reasonable doubt
applies equally to a case of rape and there can
be no presumption that a prosecutrix would
always tell the entire story truthfully.”

27. The Hon’ble Supreme Court in Radhu vs. State of

Madhya Pradesh, 2007 (12) SCC 57, found glaring

discrepancies in the statements of the prosecutrix and her

mother, which do not inspire confidence, thus the conviction of

the accused was set aside. Apposite paras of the judgment

(supra) are extracted hereunder for ready reference:

“12. Dr. Vandana (PW-8) stated that on examination
of Sumanbai, she found that her menstrual cycle
had not started and pubic hair had not
developed, and that her hymen was ruptured but
the rupture was old. She stated that there were
no injuries on her private parts and she could not
give any opinion as to whether any rape had

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34

been committed. These were also recorded in the
examination Report (Ex. P8). She, however,
referred to an abrasion on the left elbow and a
small abrasion on the arm and a contusion on
the right leg, of Sumanbai. She further stated
that she prepared two vaginal swabs for

.

examination and handed it over along with the

petticoat of Sumanbai to the police constable, for
being sent for examination. But no evidence is
placed about the results of the examination of
the vaginal swabs and petticoat. Thus, the

medical evidence does not corroborate the case
of sexual intercourse or rape.

13. We are thus left with the sole testimony of the
prosecutrix and the medical evidence that

Sumanbai had an abrasion on the left elbow, an
abrasion on her arm and a contusion on her leg.
But these marks of injuries, by themselves, are
not sufficient to establish rape, wrongful
confinement or hurt, if the evidence of the

prosecutrix is found to be not trustworthy and
there is no corroboration.

14. Lalithabai says that when Sumanbai did not
return, she enquired with Gyarsibai. Sumanbai
also says that she used to often visit the house of

Gyarsibai. She says that Radhu’s parents are
kaka and baba of her mother and Radhu was her
maternal uncle. The families were closely related
and their relationship was cordial. In the

circumstances, the case of the prosecution that
Gyarsibai would have invited Sumanbai to her
house to abet her son Radhu to rape Sumanbai

and that Gyarsibai was present in the small
house during the entire night when the rape was
committed, appears to be highly improbable in

the light of the evidence and circumstances.

15. The FIR states that one Dinesh was sent by
Lalithabai to fetch her husband. Lalitabai and
Mangilal have stated that they did not know
anyone by the name Dinesh. Sumanbai stated in
her evidence that on 29.1.1991, as her father
was away, her brother-in-law went to bring back
her father, that the name of her brother-in-law is
Ramesh, but the SHO wrongly wrote his name as
‘Dinesh’. But none else mentioned about such a
mistake. Neither Ramesh nor Dinesh was
examined.

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35

16. The evidence of the prosecutrix when read as a
whole, is full of discrepancies and does not
inspire confidence. The gaps in the evidence, the
several discrepancies in the evidence and other
circumstances make it highly improbable that

.

such an incident ever took place. The learned

counsel for the respondent submitted that
defence had failed to prove that Mangilal, father
of prosecutrix was indebted to Radhu’s father
Nathu and consequently, defence of false

implication of accused should be rejected.
Attention was invited to the denial by the mother
and father of the prosecutrix, of the suggestion
made on behalf of the defence, that Sumanbai’s
father Mangilal was indebted to Radhu’s father

Nathu and because Nathu was demanding
money, they had made the false charge of rape,
to avoid repayment. The fact that the defence
had failed to prove the indebtedness of Mangilal
or any motive for false implication, does not

have much relevance, as the prosecution
miserably failed to prove the charges. We are

satisfied that the evidence does not warrant a
finding of guilt at all, and the Trial Court and
High Court erred in returning a finding of guilt.”

28. The Hon’ble Supreme Court in Aman Kumar vs.

State of Haryana, 2004(4) SCC 379, held that where there is

no material to show that the accused was determined to have

sexual intercourse, the offence cannot be said to be an attempt

to commit rape to attract culpability under Sections 376/511

IPC and the case can be one of indecent assault upon a woman.

Apposite paras of the judgment (supra) are extracted

hereinbelow:

13. There is no material to show that the accused
were determined to have sexual intercourse in

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36

all events. In the aforesaid background, the
offence cannot be said to be an attempt to
commit rape to attract culpability under Section
376/511, I. P. C. But the case is certainly one of
indecent assault upon a woman. Essential
ingredients of the offence punishable under

.

Section 354, I. P. C. are that the person assaulted

must be a woman, and the accused must have
used criminal force on her intending thereby to
outrage her modesty. What constitutes an
outrage to female modesty is nowhere defined.

The essence of a woman’s modesty is her sex. The
culpable intention of the accused is the crux of
the matter. The reaction of the woman is very
relevant, but its absence is not always decisive.
Modesty in this Section is an attribute associated

with female human beings as a class. It is a virtue
which attaches to a female owing to her sex. The
act of pulling a woman, removing her dress
coupled with a request for sexual intercourse, is
such as would be an outrage to the modesty of a

woman, and knowledge that modesty is likely to
be outraged, is sufficient to constitute the offence

without any deliberate intention having such
outrage alone for its object. As indicated above,
the word ‘modesty’ is not defined in IPC. The
Shorter Oxford Dictionary (Third Edn.) defines

the word ‘modesty’ in relation to woman as
follows :

“Decorous in manner and conduct; not

forward or lowe; Shame-fast;
Scrupulously chast.”

14. Modesty can be described as the quality of being
modest; and in relation to woman, “womanly
propriety of behaviour; scrupulous chastity of

thought, speech and conduct.” It is the reserve or
sense of shame proceeding from instinctive
aversion to impure or coarse suggestions. As
observed by Justice Patterson in Rex v. James
Lloyd (1876) 7 C and P 817. In order to find the
accused guilty of an assault with intent to
commit a rape, court must be satisfied that the
accused, when he laid hold of the prosecutrix, not
only desired to gratify his passions upon her
person but that he intended to do so at all events,
and notwithstanding any resistance on her part.
The point of distinction between an offence of
attempt to commit rape and to commit indecent

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37

assault is that there should be some action on
the part of the accused which would show that he
was just going to have sexual connection with
her.

15. In that view of the matter, it would be

.

appropriate to set aside the conviction of the

appellants under Section 376(2)(g) and convict
them under Section 354 read with Section 34, I. P.
C. Custodial sentence of two years each, with a
fine of Rs. 500/- each and a default stipulation of

three months rigorous imprisonment in case of
failure to pay the fine would meet the ends of
justice. The appeal is allowed to the extent
indicated above.”

29. After exhaustive discussion of the evidence and the

law, as cited above, following points emerge, which are material

for determination of guilt or innocence of the accused:

1. PW-1, Smt. Nirmala Devi (mother of the

prosecutrix) deposed that she remained in
the house of PW-4, Smt. Anju Sharma (her

neighbour), for approximately 10-12
minutes, where she had gone to give

vegetables. When she returned, she did
not find the prosecutrix in the

accommodation, so she called her and the
prosecutrix was seen by her coming out
from the accommodation of the accused
with her shirt upwards and she was
shivering and weeping. If this statement of
PW-1 is seen in conjunction with statement
of PW-4, Smt. Anju Sharma, in whose

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38

house the PW-1 had gone to give
vegetables, there appears to be major
contradiction. PW-4 has categorically
deposed that PW-1, Smt. Nirmala Devi,

.

stayed in her house for about a minute.
This is a material contradiction and the

same cannot be ignored, as the alleged
occurrence, by no stretch of imagination,
could have happened within a time span of

a minute or so.

2. PW-1, Smt. Nirmala Devi, has also deposed
that when the prosecutrix came out of the

accommodation of the accused, she was

weeping and thereafter she divulged the
incidence to her, but the prosecutrix while
appearing in the witness-box, as PW-2, did

not say anything with regard to the fact
that she was weeping when her mother

(PW-1) called her. Therefore, there is

variance in the statements of PW-1, who
subsequently reported the matter to the

police qua the occurrence, and the
prosecutrix, who is the sole eye witness of
the occurrence. This variance
encapsulates the versions of these
witnesses with doubt.

3. Another point, which emerges, is that
initially the story portrayed was with
regard to sexual assault, but it was

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39

unearthed only after the medical evidence
that there was no biological penetration,
therefore, the initial story, as divulged by
the prosecutrix and her mother, is again

.

engulfed in suspicion and subsequently
offence under Section 376 read with

Section 511 IPC was registered.

4. The prosecutrix categorically deposed in
her statement that earlier to the alleged

occurrence the accused 2-3 times had
committed bad act with her and on the day
of alleged occurrence he had committed

bad act with her, however, the medical

evidence qua the prosecutrix unequivocally
and unambiguously establish that there
was nothing suggestive of sexual

intercourse. Thus, the medical evidence
nowhere suggests that the prosecutrix had

been sexually assaulted.

5. The material collected by the prosecution
has failed to establish that the accused

was present in his accommodation at the
time of occurrence and was not in his
offence during the relevant time. It is
correct that the plea of alibi, if taken, is to
be proved by the accused and the onus of
proving the plea is always on the accused,
but the initial burden to establish that the
accused was present on the spot of

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40

occurrence is always on the prosecution.
The presence of the accused on the spot at
the relevant time could have been proved
by PW-4, Smt. Anju Sharma, who was

.

living nearby and from whose
accommodation PW-1, Smt. Nirmala Devi

(complainant) had returned to her house.
PW-4, Smt. Anju Sharma, in her statement
did not say anything qua the presence of

the accused at the relevant time and she
categorically deposed that she came to
know about the occurrence afterwards,

thus the prosecution could not clearly

establish the presence of the accused on
the spot at the relevant time. Manifestly,
the primary burden of proving the presence

of the accused on the spot at the relevant
time is on the prosecution, but the

prosecution has failed to discharge this

burden, which also shakes the semblance
of the prosecution story. PW-4, Smt. Anju

Sharma, in fact, did not support the
prosecution story, which creates a dent in
the the veracity of the prosecution story.

6. The medico legal certificate of the
prosecutrix, Ex.PW-9/B, shows that there
was no biological penetration or any signs
suggesting attempt of sexual assault. The
scrutiny of the statement of PW-9, Dr.

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41

Shahida Ali, reveals that she nowhere
deposed that she observed any cream like
substance on the private parts of the
prosecutrix, which, as per the prosecution

.

story, was boro plus cream. Thus, the
prosecution story with respect to the fact

that the accused applied boro plus cream
on the private parts of the prosecutrix
seems imaginative and highly improbable,

especially in the absence of any cogent and
convincing material providing lateral
support to it. This facet of the prosecution

story is also marred by Forensic Report,

Ex. PX, which clearly portray that the boro
plus cream sent for forensic analysis was
found to be boro plus cream and there was

no matching etc. with any cream like
substance found on the samples sent by

PW-9, Dr. Shahida Ali, viz., pubic hair.

PW-9, Dr. Shahida Ali, did not find pubic
hairs, which were 3 cm long, matted, it

also creates a doubt qua the authenticity of
the prosecution story. Thus, it is crystal
clear that boro plus cream was not found
on the pubic hairs of the prosecutrix and
there were no injury marks on her lips,
cheeks, neck, breasts, chest, back and
abdomen. The hymen of the prosecutrix
was found intact and her vagina admits

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42

one finger with difficulty. The statement of
the prosecutrix did not match with the
medical evidence and the statements of the
prosecutrix and PW-1, Smt. Nirmala Devi

.

(mother of the prosecutrix) did not get any
support from independent witness, PW-4,

Smt. Anju Sharma. In these
circumstances, the conclusion that there
was no assault and it was a concocted or

imaginary story cannot be ruled out. The
accused cannot be allowed to suffer
conviction on the anvil of such a story

which is not supported by the evidence,

medical evidence and the statement of the
independent witnesses and otherwise also
the prosecution has failed to prove the

presence of the accused on the spot at the
relevant time.

7. Nothing is emanating from the record

which conclusively establishes the
presence of the accused on the spot. It has

come on record that the accused came on
the spot when he was called from his office
by the police. It is also apposite to note
here that the accused was residing in the
said accommodation with his children and
wife.

8. The available evidence also provides a clue
that there had been animosity inter se the

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43

family of the prosecutrix and the family of
the accused. Although, fact qua animosity
is not that much important for
adjudication of guilt or innocence of the

.

accused, but in any case it provides a
ground that the complainant party may

have falsely implicated the accused due to
such animosity. This fact also vitiates the
prosecution story and renders it doubtful

and full of suspicions.

30. This Court thus comes to the conclusion that

prosecution case is full of doubts and suspicions and these go

to the very root of the prosecution case and renders the

prosecution story doubtful. It is settled law that benefit of

doubt goes to the accused and the most probable conclusion in

the present set of circumstances is that the lacunae which have

occurred in the present case are fatal to the prosecution case.

Thus, keeping in view the overall conspectus of the case, the

inescapable conclusion is that the prosecution has failed to

prove the guilt of the accused beyond the shadow of reasonable

doubt and the benefit of the same goes to the accused.

31. Looking at from any angle, the conclusion of

convicting the accused, as drawn by the learned Trial Court,

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44

warrants interference by this Court, especially keeping in view

the slippery evidence and flaws in the prosecution case. Thus,

the appeal is allowed and the judgment of the learned Trial

.

Court, whereby the accused (appellant) was convicted, is set

aside, as the same is not sustainable in the eyes of law.

Accordingly, the accused is acquitted and ordered to be

released forthwith, if not required in any other process of law.

The Registry is directed to prepare the release warrants.

32. Accordingly,
r the appeal, so also pending

application(s), if any, stand(s) disposed of.

(Chander Bhusan Barowalia)
Judge

16th August, 2017
(virender)

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